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Alexander Hamilton, John Jay, and James Madison 

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Title: The Federalist Papers 

Author: Alexander Hamilton, John Jay, and James Madison 

Release Date: November 6, 2009 [EBook #1404] 

Language: English 

Character set encoding: ISO-8859-1 

*** START OF THIS PROJECT GUTENBERG EBOOK THE FEDERALIST PAPERS *** 



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THE FEDERALIST PAPERS 



By 

Alexander Hamilton, 
John Jay, 



James Madison 



CONTENTS 

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FEDERALIST No. 1. General Introduction 

FEDERALIST No. 2. Concerning Dangers 
from Foreign Force and Influence 

FEDERALIST No. 3. The Same Subject 
Continued (Concerning Dangers From 
Foreign Force and Influence) 

FEDERALIST No. 4. The Same Subject 
Continued (Concerning Dangers From 
Foreign Force and Influence) 

FEDERALIST No. 5. The Same Subject 
Continued (Concerning Dangers From 
Foreign Force and Influence) 

FEDERALIST No. 6. Concerning Dangers 
from Dissensions Between the States 

FEDERALIST No. 7. The Same Subject 
Continued (Concerning Dangers from 
Dissensions Between the States) 

FEDERALIST No. 8. The Consequences of 
Hostilities Between the States 

FEDERALIST No. 9. The Union as a 
Safeguard Against Domestic Faction and 
Insurrection 



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FEDERALIST No. 10. The Same Subject 
Continued (The Union as a Safeguard Against 
Domestic Faction and Insurrection) 

FEDERALIST No. 11. The Utility of the Union 
in Respect to Commercial Relations and a 
Navy 

FEDERALIST No. 12. The Utility of the Union 
In Respect to Revenue 

FEDERALIST No. 13. Advantage of the Union 
in Respect to Economy in Government 

FEDERALIST No. 14. Objections to the 
Proposed Constitution From Extent of Territory 
Answered 

FEDERALIST No. 14. Objections to the 
Proposed Constitution From Extent of Territory 
Answered 

FEDERALIST No. 15. The Insufficiency of the 
Present Confederation to Preserve the Union 

FEDERALIST No. 16. The Same Subject 
Continued (The Insufficiency of the Present 
Confederation to Preserve the Union) 

FEDERALIST No. 17. The Same Subject 
Continued (The Insufficiency of the Present 



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Confederation to Preserve the Union) 

FEDERALIST No. 18. The Same Subject 
Continued (The Insufficiency of the Present 
Confederation to Preserve the Union) 

FEDERALIST No. 19. The Same Subject 
Continued (The Insufficiency of the Present 
Confederation to Preserve the Union) 

FEDERALIST No. 20. The Same Subject 
Continued (The Insufficiency of the Present 
Confederation to Preserve the Union) 

FEDERALIST No. 21. Other Defects of the 
Present Confederation 

FEDERALIST No. 22. The Same Subject 
Continued (Other Defects of the Present 
Confederation) 

FEDERALIST No. 23. The Necessity of a 
Government as Energetic as the One 
Proposed to the Preservation of the Union 

FEDERALIST No. 24. The Powers Necessary 
to the Common Defense Further Considered 

FEDERALIST No. 25. The Same Subject 
Continued (The Powers Necessary to the 
Common Defense Further Considered) 



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FEDERALIST No. 26. The Idea of Restraining 
the Legislative Authority in Regard to the 
Common Defense Considered. 

FEDERALIST No. 27. The Same Subject 
Continued (The Idea of Restraining the 
Legislative Authority in Regard to the Common 
Defense Considered) 

FEDERALIST No. 28. The Same Subject 
Continued (The Idea of Restraining the 
Legislative Authority in Regard to the Common 
Defense Considered) 

FEDERALIST No. 29. Concerning the Militia 

FEDERALIST No. 30. Concerning the General 
Power of Taxation 

FEDERALIST No. 31. The Same Subject 
Continued (Concerning the General Power of 
Taxation) 

FEDERALIST No. 32. The Same Subject 
Continued (Concerning the General Power of 
Taxation) 

FEDERALIST No. 33. The Same Subject 
Continued (Concerning the General Power of 
Taxation) 

FEDERALIST No. 34. The Same Subject 

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Continued (Concerning the General Power of 
Taxation) 

FEDERALIST No. 35. The Same Subject 
Continued (Concerning the General Power of 
Taxation) 

FEDERALIST No. 36. The Same Subject 
Continued (Concerning the General Power of 
Taxation) 

FEDERALIST No. 37. Concerning the 
Difficulties of the Convention in Devising a 
Proper Form of Government. 

FEDERALIST No. 38. The Same Subject 
Continued, and the Incoherence of the 
Objections to the New Plan Exposed. 

FEDERALIST No. 39. The Conformity of the 
Plan to Republican Principles 

FEDERALIST No. 40. On the Powers of the 
Convention to Form a Mixed Government 
Examined and Sustained. 

FEDERALIST No. 41. General View of the 
Powers Conferred by The Constitution 

FEDERALIST No. 42. The Powers Conferred 
by the Constitution Further Considered 



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FEDERALIST No. 43. The Same Subject 
Continued (The Powers Conferred by the 
Constitution Further Considered) 

FEDERALIST No. 44. Restrictions on the 
Authority of the Several States 

FEDERALIST No. 45. The Alleged Danger 
From the Powers of the Union to the State 
Governments. 

FEDERALIST No. 46. The Influence of the 
State and Federal Governments Compared 

FEDERALIST No. 47. The Particular Structure 
of the New Government and the Distribution of 
Power Among Its Different Parts. 

FEDERALIST No. 48. These Departments 
Should Not Be So Far Separated as to Have 
No Constitutional Control Over Each Other. 

FEDERALIST No. 49. Method of Guarding 
Against the Encroachments of Any One 
Department of Government by Appealing to 
the People Through a Convention. 

FEDERALIST No. 50. Periodical Appeals to 
the People Considered 

FEDERALIST No. 51. The Structure of the 
Government Must Furnish the Proper Checks 



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and Balances Between the Different 
Departments. 

FEDERALIST No. 52. The House of 
Representatives 

FEDERALIST No. 53. The Same Subject 
Continued (The House of Representatives) 

FEDERALIST No. 54. The Apportionment of 
Members Among the States 

FEDERALIST No. 55. The Total Number of the 
House of Representatives 

FEDERALIST No. 56. The Same Subject 
Continued (The Total Number of the House of 
Representatives) 

FEDERALIST No. 57. The Alleged Tendency 
of the New Plan to Elevate the Few at the 
Expense of the Many Considered in 
Connection with Representation. 

FEDERALIST No. 58. Objection That The 
Number of Members Will Not Be Augmented 
as the Progress of Population Demands. 

FEDERALIST No. 59. Concerning the Power 
of Congress to Regulate the Election of 
Members 



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FEDERALIST No. 60. The Same Subject 
Continued (Concerning the Power of 
Congress to Regulate the Election of 
Members) 

FEDERALIST No. 61. The Same Subject 
Continued (Concerning the Power of 
Congress to Regulate the Election of 
Members) 

FEDERALIST No. 62. The Senate 

FEDERALIST No. 63. The Senate Continued 

FEDERALIST No. 64. The Powers of the 
Senate 

FEDERALIST No. 65. The Powers of the 
Senate Continued 

FEDERALIST No. 66. Objections to the Power 
of the Senate To Set as a Court for 
Impeachments Further Considered. 

FEDERALIST No. 67. The Executive 
Department 

FEDERALIST No. 68. The Mode of Electing 
the President 

FEDERALIST No. 69. The Real Character of 
the Executive 



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FEDERALIST No. 70. The Executive 
Department Further Considered 

FEDERALIST No. 71. The Duration in Office 
of the Executive 

FEDERALIST No. 72. The Same Subject 
Continued, and Re- Eligibility of the Executive 
Considered. 

FEDERALIST No. 73. The Provision For The 
Support of the Executive, and the Veto Power 

FEDERALIST No. 74. The Command of the 
Military and Naval Forces, and the Pardoning 
Power of the Executive. 

FEDERALIST No. 75. The Treaty- Making 
Power of the Executive 

FEDERALIST No. 76. The Appointing Power 
of the Executive 

FEDERALIST No. 77. The Appointing Power 
Continued and Other Powers of the Executive 
Considered. 

FEDERALIST No. 78. The Judiciary 
Department 

FEDERALIST No. 79. The Judiciary 
Continued 

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FEDERALIST No. 80. The Powers of the 
Judiciary 

FEDERALIST No. 81. The Judiciary 
Continued, and the Distribution of the Judicial 
Authority. 

FEDERALIST No. 82. The Judiciary 
Continued. 

FEDERALIST No. 83. The Judiciary 
Continued in Relation to Trial by Jury 

FEDERALIST No. 84. Certain General and 
Miscellaneous Objections to the Constitution 
Considered and Answered. 

FEDERALIST No. 85. Concluding Remarks 



FEDERALIST No. 1. General Introduction 



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For the Independent Journal. Saturday, October 27, 1787 

HAMILTON 

To the People of the State of New York: 

AFTER an unequivocal experience of the inefficacy of the subsisting federal 
government, you are called upon to deliberate on a new Constitution for the United 
States of America. The subject speaks its own importance; comprehending in its 
consequences nothing less than the existence of the UNION, the safety and 
welfare of the parts of which it is composed, the fate of an empire in many 
respects the most interesting in the world. It has been frequently remarked that it 
seems to have been reserved to the people of this country, by their conduct and 
example, to decide the important question, whether societies of men are really 
capable or not of establishing good government from reflection and choice, or 
whether they are forever destined to depend for their political constitutions on 
accident and force. If there be any truth in the remark, the crisis at which we are 
arrived may with propriety be regarded as the era in which that decision is to be 
made; and a wrong election of the part we shall act may, in this view, deserve to 
be considered as the general misfortune of mankind. 

This idea will add the inducements of philanthropy to those of patriotism, to 
heighten the solicitude which all considerate and good men must feel for the event. 
Happy will it be if our choice should be directed by a judicious estimate of our true 
interests, unperplexed and unbiased by considerations not connected with the 
public good. But this is a thing more ardently to be wished than seriously to be 
expected. The plan offered to our deliberations affects too many particular 
interests, innovates upon too many local institutions, not to involve in its discussion 
a variety of objects foreign to its merits, and of views, passions and prejudices 
little favorable to the discovery of truth. 

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Among the most formidable of the obstacles which the new Constitution will have 
to encounter may readily be distinguished the obvious interest of a certain class of 
men in every State to resist all changes which may hazard a diminution of the 
power, emolument, and consequence of the offices they hold under the State 
establishments; and the perverted ambition of another class of men, who will either 
hope to aggrandize themselves by the confusions of their country, or will flatter 
themselves with fairer prospects of elevation from the subdivision of the empire 
into several partial confederacies than from its union under one government. 

It is not, however, my design to dwell upon observations of this nature. I am well 
aware that it would be disingenuous to resolve indiscriminately the opposition of 
any set of men (merely because their situations might subject them to suspicion) 
into interested or ambitious views. Candor will oblige us to admit that even such 
men may be actuated by upright intentions; and it cannot be doubted that much of 
the opposition which has made its appearance, or may hereafter make its 
appearance, will spring from sources, blameless at least, if not respectableA — the 
honest errors of minds led astray by preconceived jealousies and fears. So 
numerous indeed and so powerful are the causes which serve to give a false bias 
to the judgment, that we, upon many occasions, see wise and good men on the 
wrong as well as on the right side of questions of the first magnitude to society. 
This circumstance, if duly attended to, would furnish a lesson of moderation to 
those who are ever so much persuaded of their being in the right in any 
controversy. And a further reason for caution, in this respect, might be drawn from 
the reflection that we are not always sure that those who advocate the truth are 
influenced by purer principles than their antagonists. Ambition, avarice, personal 
animosity, party opposition, and many other motives not more laudable than these, 
are apt to operate as well upon those who support as those who oppose the right 
side of a question. Were there not even these inducements to moderation, nothing 
could be more ill-judged than that intolerant spirit which has, at all times, 
characterized political parties. For in politics, as in religion, it is equally absurd to 

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aim at making proselytes by fire and sword. Heresies in either can rarely be cured 
by persecution. 

And yet, however just these sentiments will be allowed to be, we have already 
sufficient indications that it will happen in this as in all former cases of great 
national discussion. A torrent of angry and malignant passions will be let loose. To 
judge from the conduct of the opposite parties, we shall be led to conclude that 
they will mutually hope to evince the justness of their opinions, and to increase the 
number of their converts by the loudness of their declamations and the bitterness 
of their invectives. An enlightened zeal for the energy and efficiency of government 
will be stigmatized as the offspring of a temper fond of despotic power and hostile 
to the principles of liberty. An over-scrupulous jealousy of danger to the rights of 
the people, which is more commonly the fault of the head than of the heart, will be 
represented as mere pretense and artifice, the stale bait for popularity at the 
expense of the public good. It will be forgotten, on the one hand, that jealousy is the 
usual concomitant of love, and that the noble enthusiasm of liberty is apt to be 
infected with a spirit of narrow and illiberal distrust. On the other hand, it will be 
equally forgotten that the vigor of government is essential to the security of liberty; 
that, in the contemplation of a sound and well-informed judgment, their interest can 
never be separated; and that a dangerous ambition more often lurks behind the 
specious mask of zeal for the rights of the people than under the forbidden 
appearance of zeal for the firmness and efficiency of government. History will 
teach us that the former has been found a much more certain road to the 
introduction of despotism than the latter, and that of those men who have 
overturned the liberties of republics, the greatest number have begun their career 
by paying an obsequious court to the people; commencing demagogues, and 
ending tyrants. 

In the course of the preceding observations, I have had an eye, my fellow-citizens, 
to putting you upon your guard against all attempts, from whatever quarter, to 
influence your decision in a matter of the utmost moment to your welfare, by any 

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impressions other than those which may result from the evidence of truth. You will, 
no doubt, at the same time, have collected from the general scope of them, that 
they proceed from a source not unfriendly to the new Constitution. Yes, my 
countrymen, I own to you that, after having given it an attentive consideration, I am 
clearly of opinion it is your interest to adopt it. I am convinced that this is the safest 
course for your liberty, your dignity, and your happiness. I affect not reserves which 
I do not feel. I will not amuse you with an appearance of deliberation when I have 
decided. I frankly acknowledge to you my convictions, and I will freely lay before 
you the reasons on which they are founded. The consciousness of good intentions 
disdains ambiguity. I shall not, however, multiply professions on this head. My 
motives must remain in the depository of my own breast. My arguments will be 
open to all, and may be judged of by all. They shall at least be offered in a spirit 
which will not disgrace the cause of truth. 

I propose, in a series of papers, to discuss the following interesting particulars: 

THE UTILITY OF THE UNION TO YOUR POLITICAL PROSPERITY THE 
INSUFFICIENCY OF THE PRESENT CONFEDERATION TO PRESERVE THAT 
UNION THE NECESSITY OF A GOVERNMENT AT LEAST EQUALLY 
ENERGETIC WITH THE ONE PROPOSED, TO THE ATTAINMENT OF THIS 
OBJECT THE CONFORMITY OF THE PROPOSED CONSTITUTION TO THE 
TRUE PRINCIPLES OF REPUBLICAN GOVERNMENT ITS ANALOGYTO YOUR 
OWN STATE CONSTITUTION and lastly, THE ADDITIONAL SECURITYWHICH 
ITS ADOPTION WILL AFFORD TO THE PRESERVATION OF THAT SPECIES 
OF GOVERNMENT, TO LIBERTY, AND TO PROPERTY. 

In the progress of this discussion I shall endeavor to give a satisfactory answer to 
all the objections which shall have made their appearance, that may seem to have 
any claim to your attention. 

It may perhaps be thought superfluous to offer arguments to prove the utility of the 

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UNION, a point, no doubt, deeply engraved on the hearts of the great body of the 
people in every State, and one, which it may be imagined, has no adversaries. But 
the fact is, that we already hear it whispered in the private circles of those who 
oppose the new Constitution, that the thirteen States are of too great extent for any 
general system, and that we must of necessity resort to separate confederacies of 
distinct portions of the whole. (1) This doctrine will, in all probability, be gradually 
propagated, till it has votaries enough to countenance an open avowal of it. For 
nothing can be more evident, to those who are able to take an enlarged view of the 
subject, than the alternative of an adoption of the new Constitution or a 
dismemberment of the Union. It will therefore be of use to begin by examining the 
advantages of that Union, the certain evils, and the probable dangers, to which 
every State will be exposed from its dissolution. This shall accordingly constitute 
the subject of my next address. 

PUBLIUS 

1. The same idea, tracing the arguments to their consequences, is held out in 
several of the late publications against the new Constitution. 



FEDERALIST No. 2. Concerning Dangers from 
Foreign Force and Influence 

For the Independent Journal. Wednesday, October 31, 1787 



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JAY 

To the People of the State of New York: 

WHEN the people of America reflect that they are now called upon to decide a 
question, which, in its consequences, must prove one of the most important that 
ever engaged their attention, the propriety of their taking a very comprehensive, as 
well as a very serious, view of it, will be evident. 

Nothing is more certain than the indispensable necessity of government, and it is 
equally undeniable, that whenever and however it is instituted, the people must 
cede to it some of their natural rights in order to vest it with requisite powers. It is 
well worthy of consideration therefore, whether it would conduce more to the 
interest of the people of America that they should, to all general purposes, be one 
nation, under one federal government, or that they should divide themselves into 
separate confederacies, and give to the head of each the same kind of powers 
which they are advised to place in one national government. 

It has until lately been a received and uncontradicted opinion that the prosperity of 
the people of America depended on their continuing firmly united, and the wishes, 
prayers, and efforts of our best and wisest citizens have been constantly directed 
to that object. But politicians now appear, who insist that this opinion is erroneous, 
and that instead of looking for safety and happiness in union, we ought to seek it in 
a division of the States into distinct confederacies or sovereignties. However 
extraordinary this new doctrine may appear, it nevertheless has its advocates; and 
certain characters who were much opposed to it formerly, are at present of the 
number. Whatever may be the arguments or inducements which have wrought this 
change in the sentiments and declarations of these gentlemen, it certainly would 
not be wise in the people at large to adopt these new political tenets without being 
fully convinced that they are founded in truth and sound policy. 



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It has often given me pleasure to observe that independent America was not 
composed of detached and distant territories, but that one connected, fertile, 
wide-spreading country was the portion of our western sons of liberty. Providence 
has in a particular manner blessed it with a variety of soils and productions, and 
watered it with innumerable streams, for the delight and accommodation of its 
inhabitants. A succession of navigable waters forms a kind of chain round its 
borders, as if to bind it together; while the most noble rivers in the world, running at 
convenient distances, present them with highways for the easy communication of 
friendly aids, and the mutual transportation and exchange of their various 
commodities. 

With equal pleasure I have as often taken notice that Providence has been 
pleased to give this one connected country to one united peopleA — a people 
descended from the same ancestors, speaking the same language, professing 
the same religion, attached to the same principles of government, very similar in 
their manners and customs, and who, by their joint counsels, arms, and efforts, 
fighting side by side throughout a long and bloody war, have nobly established 
general liberty and independence. 

This country and this people seem to have been made for each other, and it 
appears as if it was the design of Providence, that an inheritance so proper and 
convenient for a band of brethren, united to each other by the strongest ties, should 
never be split into a number of unsocial, jealous, and alien sovereignties. 

Similar sentiments have hitherto prevailed among all orders and denominations of 
men among us. To all general purposes we have uniformly been one people each 
individual citizen everywhere enjoying the same national rights, privileges, and 
protection. As a nation we have made peace and war; as a nation we have 
vanquished our common enemies; as a nation we have formed alliances, and 
made treaties, and entered into various compacts and conventions with foreign 
states. 



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A strong sense of the value and blessings of union induced the people, at a very 
early period, to institute a federal government to preserve and perpetuate it. They 
formed it almost as soon as they had a political existence; nay, at a time when 
their habitations were in flames, when many of their citizens were bleeding, and 
when the progress of hostility and desolation left little room for those calm and 
mature inquiries and reflections which must ever precede the formation of a wise 
and well-balanced government for a free people. It is not to be wondered at, that a 
government instituted in times so inauspicious, should on experiment be found 
greatly deficient and inadequate to the purpose it was intended to answer. 

This intelligent people perceived and regretted these defects. Still continuing no 
less attached to union than enamored of liberty, they observed the danger which 
immediately threatened the former and more remotely the latter; and being 
persuaded that ample security for both could only be found in a national 
government more wisely framed, they as with one voice, convened the late 
convention at Philadelphia, to take that important subject under consideration. 

This convention composed of men who possessed the confidence of the people, 
and many of whom had become highly distinguished by their patriotism, virtue and 
wisdom, in times which tried the minds and hearts of men, undertook the arduous 
task. In the mild season of peace, with minds unoccupied by other subjects, they 
passed many months in cool, uninterrupted, and daily consultation; and finally, 
without having been awed by power, or influenced by any passions except love for 
their country, they presented and recommended to the people the plan produced 
by their joint and very unanimous councils. 

Admit, for so is the fact, that this plan is only RECOMMENDED, not imposed, yet 
let it be remembered that it is neither recommended to BLIND approbation, nor to 
BLIND reprobation; but to that sedate and candid consideration which the 
magnitude and importance of the subject demand, and which it certainly ought to 
receive. But this (as was remarked in the foregoing number of this paper) is more 

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to be wished than expected, that it may be so considered and examined. 
Experience on a former occasion teaches us not to be too sanguine in such 
hopes. It is not yet forgotten that well-grounded apprehensions of imminent danger 
induced the people of America to form the memorable Congress of 1774. That 
body recommended certain measures to their constituents, and the event proved 
their wisdom; yet it is fresh in our memories how soon the press began to teem 
with pamphlets and weekly papers against those very measures. Not only many of 
the officers of government, who obeyed the dictates of personal interest, but 
others, from a mistaken estimate of consequences, or the undue influence of 
former attachments, or whose ambition aimed at objects which did not correspond 
with the public good, were indefatigable in their efforts to persuade the people to 
reject the advice of that patriotic Congress. Many, indeed, were deceived and 
deluded, but the great majority of the people reasoned and decided judiciously; 
and happy they are in reflecting that they did so. 

They considered that the Congress was composed of many wise and experienced 
men. That, being convened from different parts of the country, they brought with 
them and communicated to each other a variety of useful information. That, in the 
course of the time they passed together in inquiring into and discussing the true 
interests of their country, they must have acquired very accurate knowledge on that 
head. That they were individually interested in the public liberty and prosperity, and 
therefore that it was not less their inclination than their duty to recommend only 
such measures as, after the most mature deliberation, they really thought prudent 
and advisable. 

These and similar considerations then induced the people to rely greatly on the 
judgment and integrity of the Congress; and they took their advice, notwithstanding 
the various arts and endeavors used to deter them from it. But if the people at 
large had reason to confide in the men of that Congress, few of whom had been 
fully tried or generally known, still greater reason have they now to respect the 
judgment and advice of the convention, for it is well known that some of the most 

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distinguished members of that Congress, who have been since tried and justly 
approved for patriotism and abilities, and who have grown old in acquiring political 
information, were also members of this convention, and carried into it their 
accumulated knowledge and experience. 

It is worthy of remark that not only the first, but every succeeding Congress, as well 
as the late convention, have invariably joined with the people in thinking that the 
prosperity of America depended on its Union. To preserve and perpetuate it was 
the great object of the people in forming that convention, and it is also the great 
object of the plan which the convention has advised them to adopt. With what 
propriety, therefore, or for what good purposes, are attempts at this particular 
period made by some men to depreciate the importance of the Union? Or why is it 
suggested that three or four confederacies would be better than one? I am 
persuaded in my own mind that the people have always thought right on this 
subject, and that their universal and uniform attachment to the cause of the Union 
rests on great and weighty reasons, which I shall endeavor to develop and explain 
in some ensuing papers. They who promote the idea of substituting a number of 
distinct confederacies in the room of the plan of the convention, seem clearly to 
foresee that the rejection of it would put the continuance of the Union in the utmost 
jeopardy. That certainly would be the case, and I sincerely wish that it may be as 
clearly foreseen by every good citizen, that whenever the dissolution of the Union 
arrives, America will have reason to exclaim, in the words of the poet: 
"FAREWELL! A LONG FAREWELL TO ALL MY GREATNESS." 

PUBLIUS 



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FEDERALIST No. 3. The Same Subject Continued 
(Concerning Dangers From Foreign Force and 

Influence) 

For the Independent Journal. Saturday, November 3, 1787 

JAY 

To the People of the State of New York: 

IT IS not a new observation that the people of any country (if, like the Americans, 
intelligent and wellinformed) seldom adopt and steadily persevere for many years 
in an erroneous opinion respecting their interests. That consideration naturally 
tends to create great respect for the high opinion which the people of America 
have so long and uniformly entertained of the importance of their continuing firmly 
united under one federal government, vested with sufficient powers for all general 
and national purposes. 

The more attentively I consider and investigate the reasons which appear to have 
given birth to this opinion, the more I become convinced that they are cogent and 
conclusive. 

Among the many objects to which a wise and free people find it necessary to 
direct their attention, that of providing for their SAFETY seems to be the first. The 
SAFETY of the people doubtless has relation to a great variety of circumstances 
and considerations, and consequently affords great latitude to those who wish to 
define it precisely and comprehensively. 

At present I mean only to consider it as it respects security for the preservation of 

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peace and tranquillity, as well as against dangers from FOREIGN ARMS AND 
INFLUENCE, as from dangers of the LIKE KIND arising from domestic causes. 
As the former of these comes first in order, it is proper it should be the first 
discussed. Let us therefore proceed to examine whether the people are not right 
in their opinion that a cordial Union, under an efficient national government, affords 
them the best security that can be devised against HOSTILITIES from abroad. 

The number of wars which have happened or will happen in the world will always 
be found to be in proportion to the number and weight of the causes, whether 
REAL or PRETENDED, which PROVOKE or INVITE them. If this remark be just, it 
becomes useful to inquire whether so many JUST causes of war are likely to be 
given by UNITED AMERICA as by DISUNITED America; for if it should turn out 
that United America will probably give the fewest, then it will follow that in this 
respect the Union tends most to preserve the people in a state of peace with other 
nations. 

The JUST causes of war, for the most part, arise either from violation of treaties or 
from direct violence. America has already formed treaties with no less than six 
foreign nations, and all of them, except Prussia, are maritime, and therefore able 
to annoy and injure us. She has also extensive commerce with Portugal, Spain, 
and Britain, and, with respect to the two latter, has, in addition, the circumstance of 
neighborhood to attend to. 

It is of high importance to the peace of America that she observe the laws of 
nations towards all these powers, and to me it appears evident that this will be 
more perfectly and punctually done by one national government than it could be 
either by thirteen separate States or by three or four distinct confederacies. 

Because when once an efficient national government is established, the best men 
in the country will not only consent to serve, but also will generally be appointed to 
manage it; for, although town or country, or other contracted influence, may place 



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men in State assemblies, or senates, or courts of justice, or executive 
departments, yet more general and extensive reputation for talents and other 
qualifications will be necessary to recommend men to offices under the national 
governments — especially as it will have the widest field for choice, and never 
experience that want of proper persons which is not uncommon in some of the 
States. Hence, it will result that the administration, the political counsels, and the 
judicial decisions of the national government will be more wise, systematical, and 
judicious than those of individual States, and consequently more satisfactory with 
respect to other nations, as well as more SAFE with respect to us. 

Because, under the national government, treaties and articles of treaties, as well 
as the laws of nations, will always be expounded in one sense and executed in the 
same manner.A — whereas, adjudications on the same points and questions, in 
thirteen States, or in three or four confederacies, will not always accord or be 
consistent; and that, as well from the variety of independent courts and judges 
appointed by different and independent governments, as from the different local 
laws and interests which may affect and influence them. The wisdom of the 
convention, in committing such questions to the jurisdiction and judgment of courts 
appointed by and responsible only to one national government, cannot be too 
much commended. 

Because the prospect of present loss or advantage may often tempt the governing 
party in one or two States to swerve from good faith and justice; but those 
temptations, not reaching the other States, and consequently having little or no 
influence on the national government, the temptation will be fruitless, and good 
faith and justice be preserved. The case of the treaty of peace with Britain adds 
great weight to this reasoning. 

Because, even if the governing party in a State should be disposed to resist such 
temptations, yet as such temptations may, and commonly do, result from 
circumstances peculiar to the State, and may affect a great number of the 

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inhabitants, the governing party may not always be able, if willing, to prevent the 
injustice meditated, or to punish the aggressors. But the national government, not 
being affected by those local circumstances, will neither be induced to commit the 
wrong themselves, nor want power or inclination to prevent or punish its 
commission by others. 

So far, therefore, as either designed or accidental violations of treaties and the 
laws of nations afford JUST causes of war, they are less to be apprehended under 
one general government than under several lesser ones, and in that respect the 
former most favors the SAFETY of the people. 

As to those just causes of war which proceed from direct and unlawful violence, it 
appears equally clear to me that one good national government affords vastly 
more security against dangers of that sort than can be derived from any other 
quarter. 

Because such violences are more frequently caused by the passions and interests 
of a part than of the whole; of one or two States than of the Union. Not a single 
Indian war has yet been occasioned by aggressions of the present federal 
government, feeble as it is; but there are several instances of Indian hostilities 
having been provoked by the improper conduct of individual States, who, either 
unable or unwilling to restrain or punish offenses, have given occasion to the 
slaughter of many innocent inhabitants. 

The neighborhood of Spanish and British territories, bordering on some States 
and not on others, naturally confines the causes of quarrel more immediately to the 
borderers. The bordering States, if any, will be those who, under the impulse of 
sudden irritation, and a quick sense of apparent interest or injury, will be most 
likely, by direct violence, to excite war with these nations; and nothing can so 
effectually obviate that danger as a national government, whose wisdom and 
prudence will not be diminished by the passions which actuate the parties 



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immediately interested. 

But not only fewer just causes of war will be given by the national government, but it 
will also be more in their power to accommodate and settle them amicably. They 
will be more temperate and cool, and in that respect, as well as in others, will be 
more in capacity to act advisedly than the offending State. The pride of states, as 
well as of men, naturally disposes them to justify all their actions, and opposes 
their acknowledging, correcting, or repairing their errors and offenses. The 
national government, in such cases, will not be affected by this pride, but will 
proceed with moderation and candor to consider and decide on the means most 
proper to extricate them from the difficulties which threaten them. 

Besides, it is well known that acknowledgments, explanations, and compensations 
are often accepted as satisfactory from a strong united nation, which would be 
rejected as unsatisfactory if offered by a State or confederacy of little 
consideration or power. 

In the year 1685, the state of Genoa having offended Louis XIV., endeavored to 
appease him. He demanded that they should send their Doge, or chief magistrate, 
accompanied by four of their senators, to FRANCE, to ask his pardon and receive 
his terms. They were obliged to submit to it for the sake of peace. Would he on 
any occasion either have demanded or have received the like humiliation from 
Spain, or Britain, or any other POWERFUL nation? 

PUBLIUS 



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FEDERALIST No. 4. The Same Subject Continued 
(Concerning Dangers From Foreign Force and 

Influence) 

For the Independent Journal. Wednesday, November 7, 1787 

JAY 

To the People of the State of New York: 

MY LAST paper assigned several reasons why the safety of the people would be 
best secured by union against the danger it maybe exposed to by JUST causes 
of war given to other nations; and those reasons show that such causes would not 
only be more rarely given, but would also be more easily accommodated, by a 
national government than either by the State governments or the proposed little 
confederacies. 

But the safety of the people of America against dangers from FOREIGN force 
depends not only on their forbearing to give JUST causes of war to other nations, 
but also on their placing and continuing themselves in such a situation as not to 
INVITE hostility or insult; for it need not be observed that there are PRETENDED 
as well as just causes of war. 

It is too true, however disgraceful it may be to human nature, that nations in general 
will make war whenever they have a prospect of getting anything by it; nay, 
absolute monarchs will often make war when their nations are to get nothing by it, 
but for the purposes and objects merely personal, such as thirst for military glory, 
revenge for personal affronts, ambition, or private compacts to aggrandize or 
support their particular families or partisans. These and a variety of other motives, 

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which affect only the mind of the sovereign, often lead him to engage in wars not 
sanctified by justice or the voice and interests of his people. But, independent of 
these inducements to war, which are more prevalent in absolute monarchies, but 
which well deserve our attention, there are others which affect nations as often as 
kings; and some of them will on examination be found to grow out of our relative 
situation and circumstances. 

With France and with Britain we are rivals in the fisheries, and can supply their 
markets cheaper than they can themselves, notwithstanding any efforts to prevent 
it by bounties on their own or duties on foreign fish. 

With them and with most other European nations we are rivals in navigation and 
the carrying trade; and we shall deceive ourselves if we suppose that any of them 
will rejoice to see it flourish; for, as our carrying trade cannot increase without in 
some degree diminishing theirs, it is more their interest, and will be more their 
policy, to restrain than to promote it. 

In the trade to China and India, we interfere with more than one nation, inasmuch 
as it enables us to partake in advantages which they had in a manner 
monopolized, and as we thereby supply ourselves with commodities which we 
used to purchase from them. 

The extension of our own commerce in our own vessels cannot give pleasure to 
any nations who possess territories on or near this continent, because the 
cheapness and excellence of our productions, added to the circumstance of 
vicinity, and the enterprise and address of our merchants and navigators, will give 
us a greater share in the advantages which those territories afford, than consists 
with the wishes or policy of their respective sovereigns. 

Spain thinks it convenient to shut the Mississippi against us on the one side, and 
Britain excludes us from the Saint Lawrence on the other; nor will either of them 
permit the other waters which are between them and us to become the means of 

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mutual intercourse and traffic. 

From these and such like considerations, which might, if consistent with prudence, 
be more amplified and detailed, it is easy to see that jealousies and uneasinesses 
may gradually slide into the minds and cabinets of other nations, and that we are 
not to expect that they should regard our advancement in union, in power and 
consequence by land and by sea, with an eye of indifference and composure. 

The people of America are aware that inducements to war may arise out of these 
circumstances, as well as from others not so obvious at present, and that 
whenever such inducements may find fit time and opportunity for operation, 
pretenses to color and justify them will not be wanting. Wisely, therefore, do they 
consider union and a good national government as necessary to put and keep 
them in SUCH A SITUATION as, instead of INVITING war, will tend to repress and 
discourage it. That situation consists in the best possible state of defense, and 
necessarily depends on the government, the arms, and the resources of the 
country. 

As the safety of the whole is the interest of the whole, and cannot be provided for 
without government, either one or more or many, let us inquire whether one good 
government is not, relative to the object in question, more competent than any 
other given number whatever. 

One government can collect and avail itself of the talents and experience of the 
ablest men, in whatever part of the Union they may be found. It can move on 
uniform principles of policy. It can harmonize, assimilate, and protect the several 
parts and members, and extend the benefit of its foresight and precautions to 
each. In the formation of treaties, it will regard the interest of the whole, and the 
particular interests of the parts as connected with that of the whole. It can apply the 
resources and power of the whole to the defense of any particular part, and that 
more easily and expeditiously than State governments or separate confederacies 



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can possibly do, for want of concert and unity of system. It can place the militia 
under one plan of discipline, and, by putting their officers in a proper line of 
subordination to the Chief Magistrate, will, as it were, consolidate them into one 
corps, and thereby render them more efficient than if divided into thirteen or into 
three or four distinct independent companies. 

What would the militia of Britain be if the English militia obeyed the government of 
England, if the Scotch militia obeyed the government of Scotland, and if the Welsh 
militia obeyed the government of Wales? Suppose an invasion; would those three 
governments (if they agreed at all) be able, with all their respective forces, to 
operate against the enemy so effectually as the single government of Great Britain 
would? 

We have heard much of the fleets of Britain, and the time may come, if we are 
wise, when the fleets of America may engage attention. But if one national 
government, had not so regulated the navigation of Britain as to make it a nursery 
for seamenA — if one national government had not called forth all the national 
means and materials for forming fleets, their prowess and their thunder would 
never have been celebrated. Let England have its navigation and fleetA — let 
Scotland have its navigation and fleetA — let Wales have its navigation and fleetA 
— let Ireland have its navigation and fleetA — let those four of the constituent parts 
of the British empire be be under four independent governments, and it is easy to 
perceive how soon they would each dwindle into comparative insignificance. 

Apply these facts to our own case. Leave America divided into thirteen or, if you 
please, into three or four independent governmentsA — what armies could they 
raise and payA — what fleets could they ever hope to have? If one was attacked, 
would the others fly to its succor, and spend their blood and money in its defense? 
Would there be no danger of their being flattered into neutrality by its specious 
promises, or seduced by a too great fondness for peace to decline hazarding their 
tranquillity and present safety for the sake of neighbors, of whom perhaps they 

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have been jealous, and whose importance they are content to see diminished? 
Although such conduct would not be wise, it would, nevertheless, be natural. The 
history of the states of Greece, and of other countries, abounds with such 
instances, and it is not improbable that what has so often happened would, under 
similar circumstances, happen again. 

But admit that they might be willing to help the invaded State or confederacy. How, 
and when, and in what proportion shall aids of men and money be afforded? Who 
shall command the allied armies, and from which of them shall he receive his 
orders? Who shall settle the terms of peace, and in case of disputes what umpire 
shall decide between them and compel acquiescence? Various difficulties and 
inconveniences would be inseparable from such a situation; whereas one 
government, watching over the general and common interests, and combining and 
directing the powers and resources of the whole, would be free from all these 
embarrassments, and conduce far more to the safety of the people. 

But whatever may be our situation, whether firmly united under one national 
government, or split into a number of confederacies, certain it is, that foreign 
nations will know and view it exactly as it is; and they will act toward us 
accordingly. If they see that our national government is efficient and well 
administered, our trade prudently regulated, our militia properly organized and 
disciplined, our resources and finances discreetly managed, our credit re- 
established, our people free, contented, and united, they will be much more 
disposed to cultivate our friendship than provoke our resentment. If, on the other 
hand, they find us either destitute of an effectual government (each State doing 
right or wrong, as to its rulers may seem convenient), or split into three or four 
independent and probably discordant republics or confederacies, one inclining to 
Britain, another to France, and a third to Spain, and perhaps played off against 
each other by the three, what a poor, pitiful figure will America make in their eyes! 
How liable would she become not only to their contempt but to their outrage, and 
how soon would dear-bought experience proclaim that when a people or family so 

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divide, it never fails to be against themselves. 

PUBLIUS 



FEDERALIST No. 5. The Same Subject Continued 
(Concerning Dangers From Foreign Force and 

Influence) 

For the Independent Journal. Saturday, November 10, 1787 

JAY 

To the People of the State of New York: 

QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes 
some observations on the importance of the UNION then forming between 
England and Scotland, which merit our attention. I shall present the public with one 
or two extracts from it: "An entire and perfect union will be the solid foundation of 
lasting peace: It will secure your religion, liberty, and property; remove the 
animosities amongst yourselves, and the jealousies and differences betwixt our 
two kingdoms. It must increase your strength, riches, and trade; and by this union 
the whole island, being joined in affection and free from all apprehensions of 
different interest, will be ENABLED TO RESIST ALL ITS ENEMIES." "We most 
earnestly recommend to you calmness and unanimity in this great and weighty 

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affair, that the union may be brought to a happy conclusion, being the only 
EFFECTUAL way to secure our present and future happiness, and disappoint the 
designs of our and your enemies, who will doubtless, on this occasion, USE 
THEIR UTMOST ENDEAVORS TO PREVENT OR DELAY THIS UNION." 

It was remarked in the preceding paper, that weakness and divisions at home 
would invite dangers from abroad; and that nothing would tend more to secure us 
from them than union, strength, and good government within ourselves. This 
subject is copious and cannot easily be exhausted. 

The history of Great Britain is the one with which we are in general the best 
acquainted, and it gives us many useful lessons. We may profit by their experience 
without paying the price which it cost them. Although it seems obvious to common 
sense that the people of such an island should be but one nation, yet we find that 
they were for ages divided into three, and that those three were almost constantly 
embroiled in quarrels and wars with one another. Notwithstanding their true 
interest with respect to the continental nations was really the same, yet by the arts 
and policy and practices of those nations, their mutual jealousies were perpetually 
kept inflamed, and for a long series of years they were far more inconvenient and 
troublesome than they were useful and assisting to each other. 

Should the people of America divide themselves into three or four nations, would 
not the same thing happen? Would not similar jealousies arise, and be in like 
manner cherished? Instead of their being "joined in affection" and free from all 
apprehension of different "interests," envy and jealousy would soon extinguish 
confidence and affection, and the partial interests of each confederacy, instead of 
the general interests of all America, would be the only objects of their policy and 
pursuits. Hence, like most other BORDERING nations, they would always be either 
involved in disputes and war, or live in the constant apprehension of them. 

The most sanguine advocates for three or four confederacies cannot reasonably 

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suppose that they would long remain exactly on an equal footing in point of 
strength, even if it was possible to form them so at first; but, admitting that to be 
practicable, yet what human contrivance can secure the continuance of such 
equality? Independent of those local circumstances which tend to beget and 
increase power in one part and to impede its progress in another, we must advert 
to the effects of that superior policy and good management which would probably 
distinguish the government of one above the rest, and by which their relative 
equality in strength and consideration would be destroyed. For it cannot be 
presumed that the same degree of sound policy, prudence, and foresight would 
uniformly be observed by each of these confederacies for a long succession of 
years. 

Whenever, and from whatever causes, it might happen, and happen it would, that 
any one of these nations or confederacies should rise on the scale of political 
importance much above the degree of her neighbors, that moment would those 
neighbors behold her with envy and with fear. Both those passions would lead 
them to countenance, if not to promote, whatever might promise to diminish her 
importance; and would also restrain them from measures calculated to advance or 
even to secure her prosperity. Much time would not be necessary to enable her to 
discern these unfriendly dispositions. She would soon begin, not only to lose 
confidence in her neighbors, but also to feel a disposition equally unfavorable to 
them. Distrust naturally creates distrust, and by nothing is good-will and kind 
conduct more speedily changed than by invidious jealousies and uncandid 
imputations, whether expressed or implied. 

The North is generally the region of strength, and many local circumstances render 
it probable that the most Northern of the proposed confederacies would, at a 
period not very distant, be unquestionably more formidable than any of the others. 
No sooner would this become evident than the NORTHERN HIVE would excite the 
same ideas and sensations in the more southern parts of America which it 
formerly did in the southern parts of Europe. Nor does it appear to be a rash 

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conjecture that its young swarms might often be tempted to gather honey in the 
more blooming fields and milder air of their luxurious and more delicate neighbors. 

They who well consider the history of similar divisions and confederacies will find 
abundant reason to apprehend that those in contemplation would in no other 
sense be neighbors than as they would be borderers; that they would neither love 
nor trust one another, but on the contrary would be a prey to discord, jealousy, and 
mutual injuries; in short, that they would place us exactly in the situations in which 
some nations doubtless wish to see us, viz., FORMIDABLE ONLY TO EACH 
OTHER. 

From these considerations it appears that those gentlemen are greatly mistaken 
who suppose that alliances offensive and defensive might be formed between 
these confederacies, and would produce that combination and union of wills of 
arms and of resources, which would be necessary to put and keep them in a 
formidable state of defense against foreign enemies. 

When did the independent states, into which Britain and Spain were formerly 
divided, combine in such alliance, or unite their forces against a foreign enemy? 
The proposed confederacies will be DISTINCT NATIONS. Each of them would 
have its commerce with foreigners to regulate by distinct treaties; and as their 
productions and commodities are different and proper for different markets, so 
would those treaties be essentially different. Different commercial concerns must 
create different interests, and of course different degrees of political attachment to 
and connection with different foreign nations. Hence it might and probably would 
happen that the foreign nation with whom the SOUTHERN confederacy might be 
at war would be the one with whom the NORTHERN confederacy would be the 
most desirous of preserving peace and friendship. An alliance so contrary to their 
immediate interest would not therefore be easy to form, nor, if formed, would it be 
observed and fulfilled with perfect good faith. 



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Nay, it is far more probable that in America, as in Europe, neighboring nations, 
acting under the impulse of opposite interests and unfriendly passions, would 
frequently be found taking different sides. Considering our distance from Europe, 
it would be more natural for these confederacies to apprehend danger from one 
another than from distant nations, and therefore that each of them should be more 
desirous to guard against the others by the aid of foreign alliances, than to guard 
against foreign dangers by alliances between themselves. And here let us not 
forget how much more easy it is to receive foreign fleets into our ports, and foreign 
armies into our country, than it is to persuade or compel them to depart. How many 
conquests did the Romans and others make in the characters of allies, and what 
innovations did they under the same character introduce into the governments of 
those whom they pretended to protect. 

Let candid men judge, then, whether the division of America into any given number 
of independent sovereignties would tend to secure us against the hostilities and 
improper interference of foreign nations. 

PUBLIUS 



FEDERALIST No. 6. Concerning Dangers from 
Dissensions Between the States 

For the Independent Journal. Wednesday, November 14, 

1787 



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HAMILTON 

To the People of the State of New York: 

THE three last numbers of this paper have been dedicated to an enumeration of 
the dangers to which we should be exposed, in a state of disunion, from the arms 
and arts of foreign nations. I shall now proceed to delineate dangers of a different 
and, perhaps, still more alarming kindA — those which will in all probability flow 
from dissensions between the States themselves, and from domestic factions and 
convulsions. These have been already in some instances slightly anticipated; but 
they deserve a more particular and more full investigation. 

A man must be far gone in Utopian speculations who can seriously doubt that, if 
these States should either be wholly disunited, or only united in partial 
confederacies, the subdivisions into which they might be thrown would have 
frequent and violent contests with each other. To presume a want of motives for 
such contests as an argument against their existence, would be to forget that men 
are ambitious, vindictive, and rapacious. To look for a continuation of harmony 
between a number of independent, unconnected sovereignties in the same 
neighborhood, would be to disregard the uniform course of human events, and to 
set at defiance the accumulated experience of ages. 

The causes of hostility among nations are innumerable. There are some which 
have a general and almost constant operation upon the collective bodies of 
society. Of this description are the love of power or the desire of pre-eminence 
and dominionA — the jealousy of power, or the desire of equality and safety. There 
are others which have a more circumscribed though an equally operative influence 
within their spheres. Such are the rivalships and competitions of commerce 
between commercial nations. And there are others, not less numerous than either 
of the former, which take their origin entirely in private passions; in the 
attachments, enmities, interests, hopes, and fears of leading individuals in the 

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communities of which they are members. Men of this class, whether the favorites 
of a king or of a people, have in too many instances abused the confidence they 
possessed; and assuming the pretext of some public motive, have not scrupled to 
sacrifice the national tranquillity to personal advantage or personal gratification. 

The celebrated Pericles, in compliance with the resentment of a prostitute, (1) at 
the expense of much of the blood and treasure of his countrymen, attacked, 
vanquished, and destroyed the city of the SAMMIANS. The same man, stimulated 
by private pique against the MEGARENSIANS,(2) another nation of Greece, or to 
avoid a prosecution with which he was threatened as an accomplice of a 
supposed theft of the statuary Phidias, (3) or to get rid of the accusations prepared 
to be brought against him for dissipating the funds of the state in the purchase of 
popularity, (4) or from a combination of all these causes, was the primitive author of 
that famous and fatal war, distinguished in the Grecian annals by the name of the 
PELOPONNESIAN war; which, after various vicissitudes, intermissions, and 
renewals, terminated in the ruin of the Athenian commonwealth. 

The ambitious cardinal, who was prime minister to Henry VIII., permitting his vanity 
to aspire to the triple crown, (5) entertained hopes of succeeding in the acquisition 
of that splendid prize by the influence of the Emperor Charles V. To secure the 
favor and interest of this enterprising and powerful monarch, he precipitated 
England into a war with France, contrary to the plainest dictates of policy, and at 
the hazard of the safety and independence, as well of the kingdom over which he 
presided by his counsels, as of Europe in general. For if there ever was a 
sovereign who bid fair to realize the project of universal monarchy, it was the 
Emperor Charles V., of whose intrigues Wolsey was at once the instrument and 
the dupe. 

The influence which the bigotry of one female, (6) the petulance of another,(7) and 
the cabals of a third, (8) had in the contemporary policy, ferments, and 
pacifications, of a considerable part of Europe, are topics that have been too often 

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descanted upon not to be generally known. 

To multiply examples of the agency of personal considerations in the production of 
great national events, either foreign or domestic, according to their direction, 
would be an unnecessary waste of time. Those who have but a superficial 
acquaintance with the sources from which they are to be drawn, will themselves 
recollect a variety of instances; and those who have a tolerable knowledge of 
human nature will not stand in need of such lights to form their opinion either of the 
reality or extent of that agency. Perhaps, however, a reference, tending to illustrate 
the general principle, may with propriety be made to a case which has lately 
happened among ourselves. If Shays had not been a DESPERATE DEBTOR, it is 
much to be doubted whether Massachusetts would have been plunged into a civil 
war. 

But notwithstanding the concurring testimony of experience, in this particular, there 
are still to be found visionary or designing men, who stand ready to advocate the 
paradox of perpetual peace between the States, though dismembered and 
alienated from each other. The genius of republics (say they) is pacific; the spirit of 
commerce has a tendency to soften the manners of men, and to extinguish those 
inflammable humors which have so often kindled into wars. Commercial republics, 
like ours, will never be disposed to waste themselves in ruinous contentions with 
each other. They will be governed by mutual interest, and will cultivate a spirit of 
mutual amity and concord. 

Is it not (we may ask these projectors in politics) the true interest of all nations to 
cultivate the same benevolent and philosophic spirit? If this be their true interest, 
have they in fact pursued it? Has it not, on the contrary, invariably been found that 
momentary passions, and immediate interest, have a more active and imperious 
control over human conduct than general or remote considerations of policy, utility 
or justice? Have republics in practice been less addicted to war than monarchies? 
Are not the former administered by MEN as well as the latter? Are there not 

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aversions, predilections, rivalships, and desires of unjust acquisitions, that affect 
nations as well as kings? Are not popular assemblies frequently subject to the 
impulses of rage, resentment, jealousy, avarice, and of other irregular and violent 
propensities? Is it not well known that their determinations are often governed by a 
few individuals in whom they place confidence, and are, of course, liable to be 
tinctured by the passions and views of those individuals? Has commerce hitherto 
done anything more than change the objects of war? Is not the love of wealth as 
domineering and enterprising a passion as that of power or glory? Have there not 
been as many wars founded upon commercial motives since that has become the 
prevailing system of nations, as were before occasioned by the cupidity of territory 
or dominion? Has not the spirit of commerce, in many instances, administered 
new incentives to the appetite, both for the one and for the other? Let experience, 
the least fallible guide of human opinions, be appealed to for an answer to these 
inquiries. 

Sparta, Athens, Rome, and Carthage were all republics; two of them, Athens and 
Carthage, of the commercial kind. Yet were they as often engaged in wars, 
offensive and defensive, as the neighboring monarchies of the same times. 
Sparta was little better than a wellregulated camp; and Rome was never sated of 
carnage and conquest. 

Carthage, though a commercial republic, was the aggressor in the very war that 
ended in her destruction. Hannibal had carried her arms into the heart of Italy and 
to the gates of Rome, before Scipio, in turn, gave him an overthrow in the 
territories of Carthage, and made a conquest of the commonwealth. 

Venice, in later times, figured more than once in wars of ambition, till, becoming 
an object to the other Italian states, Pope Julius II. found means to accomplish that 
formidable league, (9) which gave a deadly blow to the power and pride of this 
haughty republic. 



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The provinces of Holland, till they were overwhelmed in debts and taxes, took a 
leading and conspicuous part in the wars of Europe. They had furious contests 
with England for the dominion of the sea, and were among the most persevering 
and most implacable of the opponents of Louis XIV. 

In the government of Britain the representatives of the people compose one 
branch of the national legislature. Commerce has been for ages the predominant 
pursuit of that country. Few nations, nevertheless, have been more frequently 
engaged in war; and the wars in which that kingdom has been engaged have, in 
numerous instances, proceeded from the people. 

There have been, if I may so express it, almost as many popular as royal wars. The 
cries of the nation and the importunities of their representatives have, upon various 
occasions, dragged their monarchs into war, or continued them in it, contrary to 
their inclinations, and sometimes contrary to the real interests of the State. In that 
memorable struggle for superiority between the rival houses of AUSTRIA and 
BOURBON, which so long kept Europe in a flame, it is well known that the 
antipathies of the English against the French, seconding the ambition, or rather the 
avarice, of a favorite leader,(10) protracted the war beyond the limits marked out 
by sound policy, and for a considerable time in opposition to the views of the court. 

The wars of these two last-mentioned nations have in a great measure grown out 
of commercial considerations^ — the desire of supplanting and the fear of being 
supplanted, either in particular branches of traffic or in the general advantages of 
trade and navigation, and sometimes even the more culpable desire of sharing in 
the commerce of other nations without their consent. 

The last war but between Britain and Spain sprang from the attempts of the British 
merchants to prosecute an illicit trade with the Spanish main. These unjustifiable 
practices on their part produced severity on the part of the Spaniards toward the 
subjects of Great Britain which were not more justifiable, because they exceeded 



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the bounds of a just retaliation and were chargeable with inhumanity and cruelty. 
Many of the English who were taken on the Spanish coast were sent to dig in the 
mines of Potosi; and by the usual progress of a spirit of resentment, the innocent 
were, after a while, confounded with the guilty in indiscriminate punishment. The 
complaints of the merchants kindled a violent flame throughout the nation, which 
soon after broke out in the House of Commons, and was communicated from that 
body to the ministry. Letters of reprisal were granted, and a war ensued, which in 
its consequences overthrew all the alliances that but twenty years before had been 
formed with sanguine expectations of the most beneficial fruits. 

From this summary of what has taken place in other countries, whose situations 
have borne the nearest resemblance to our own, what reason can we have to 
confide in those reveries which would seduce us into an expectation of peace and 
cordiality between the members of the present confederacy, in a state of 
separation? Have we not already seen enough of the fallacy and extravagance of 
those idle theories which have amused us with promises of an exemption from the 
imperfections, weaknesses and evils incident to society in every shape? Is it not 
time to awake from the deceitful dream of a golden age, and to adopt as a 
practical maxim for the direction of our political conduct that we, as well as the 
other inhabitants of the globe, are yet remote from the happy empire of perfect 
wisdom and perfect virtue? 

Let the point of extreme depression to which our national dignity and credit have 
sunk, let the inconveniences felt everywhere from a lax and ill administration of 
government, let the revolt of a part of the State of North Carolina, the late 
menacing disturbances in Pennsylvania, and the actual insurrections and 
rebellions in Massachusetts, declareA — ! 

So far is the general sense of mankind from corresponding with the tenets of those 
who endeavor to lull asleep our apprehensions of discord and hostility between the 
States, in the event of disunion, that it has from long observation of the progress of 

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society become a sort of axiom in politics, that vicinity or nearness of situation, 
constitutes nations natural enemies. An intelligent writer expresses himself on this 
subject to this effect: "NEIGHBORING NATIONS (says he) are naturally enemies of 
each other unless their common weakness forces them to league in a 
CONFEDERATE REPUBLIC, and their constitution prevents the differences that 
neighborhood occasions, extinguishing that secret jealousy which disposes all 
states to aggrandize themselves at the expense of their neighbors. "(11) This 
passage, at the same time, points out the EVIL and suggests the REMEDY. 

PUBLIUS 

1. Aspasia, vide "Plutarch's Life of Pericles." 

2. Ibid. 

3. Ibid. 

4. Ibid. Phidias was supposed to have stolen some public gold, with the 
connivance of Pericles, for the embellishment of the statue of Minerva. 

5. Worn by the popes. 

6. Madame de Maintenon. 

7. Duchess of Marlborough. 

8. Madame de Pompadour. 

9. The League of Cambray, comprehending the Emperor, the King of France, the 
King of Aragon, and most of the Italian princes and states. 

10. The Duke of Marlborough. 



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11. Vide "Principes des Negociations" par I'AbbA© de Mably. 



FEDERALIST No. 7. The Same Subject Continued 
(Concerning Dangers from Dissensions Between 

the States) 

For the Independent Journal. Thursday, November 15, 1787 

HAMILTON 

To the People of the State of New York: 

IT IS sometimes asked, with an air of seeming triumph, what inducements could 
the States have, if disunited, to make war upon each other? It would be a full 
answer to this question to sayA — precisely the same inducements which have, at 
different times, deluged in blood all the nations in the world. But, unfortunately for 
us, the question admits of a more particular answer. There are causes of 
differences within our immediate contemplation, of the tendency of which, even 
under the restraints of a federal constitution, we have had sufficient experience to 
enable us to form a judgment of what might be expected if those restraints were 
removed. 

Territorial disputes have at all times been found one of the most fertile sources of 
hostility among nations. Perhaps the greatest proportion of wars that have 



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desolated the earth have sprung from this origin. This cause would exist among us 
in full force. We have a vast tract of unsettled territory within the boundaries of the 
United States. There still are discordant and undecided claims between several of 
them, and the dissolution of the Union would lay a foundation for similar claims 
between them all. It is well known that they have heretofore had serious and 
animated discussion concerning the rights to the lands which were ungranted at 
the time of the Revolution, and which usually went under the name of crown lands. 
The States within the limits of whose colonial governments they were comprised 
have claimed them as their property, the others have contended that the rights of 
the crown in this article devolved upon the Union; especially as to all that part of the 
Western territory which, either by actual possession, or through the submission of 
the Indian proprietors, was subjected to the jurisdiction of the king of Great Britain, 
till it was relinquished in the treaty of peace. This, it has been said, was at all 
events an acquisition to the Confederacy by compact with a foreign power. It has 
been the prudent policy of Congress to appease this controversy, by prevailing 
upon the States to make cessions to the United States for the benefit of the whole. 
This has been so far accomplished as, under a continuation of the Union, to afford 
a decided prospect of an amicable termination of the dispute. A dismemberment 
of the Confederacy, however, would revive this dispute, and would create others 
on the same subject. At present, a large part of the vacant Western territory is, by 
cession at least, if not by any anterior right, the common property of the Union. If 
that were at an end, the States which made the cession, on a principle of federal 
compromise, would be apt when the motive of the grant had ceased, to reclaim 
the lands as a reversion. The other States would no doubt insist on a proportion, 
by right of representation. Their argument would be, that a grant, once made, could 
not be revoked; and that the justice of participating in territory acquired or secured 
by the joint efforts of the Confederacy, remained undiminished. If, contraryto 
probability, it should be admitted by all the States, that each had a right to a share 
of this common stock, there would still be a difficulty to be surmounted, as to a 
proper rule of apportionment. Different principles would be set up by different 

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States for this purpose; and as they would affect the opposite interests of the 
parties, they might not easily be susceptible of a pacific adjustment. 

In the wide field of Western territory, therefore, we perceive an ample theatre for 
hostile pretensions, without any umpire or common judge to interpose between the 
contending parties. To reason from the past to the future, we shall have good 
ground to apprehend, that the sword would sometimes be appealed to as the 
arbiter of their differences. The circumstances of the dispute between Connecticut 
and Pennsylvania, respecting the land at Wyoming, admonish us not to be 
sanguine in expecting an easy accommodation of such differences. The articles of 
confederation obliged the parties to submit the matter to the decision of a federal 
court. The submission was made, and the court decided in favor of Pennsylvania. 
But Connecticut gave strong indications of dissatisfaction with that determination; 
nor did she appear to be entirely resigned to it, till, by negotiation and 
management, something like an equivalent was found for the loss she supposed 
herself to have sustained. Nothing here said is intended to convey the slightest 
censure on the conduct of that State. She no doubt sincerely believed herself to 
have been injured by the decision; and States, like individuals, acquiesce with 
great reluctance in determinations to their disadvantage. 

Those who had an opportunity of seeing the inside of the transactions which 
attended the progress of the controversy between this State and the district of 
Vermont, can vouch the opposition we experienced, as well from States not 
interested as from those which were interested in the claim; and can attest the 
danger to which the peace of the Confederacy might have been exposed, had this 
State attempted to assert its rights by force. Two motives preponderated in that 
opposition: one, a jealousy entertained of our future power; and the other, the 
interest of certain individuals of influence in the neighboring States, who had 
obtained grants of lands under the actual government of that district. Even the 
States which brought forward claims, in contradiction to ours, seemed more 
solicitous to dismember this State, than to establish their own pretensions. These 

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were New Hampshire, Massachusetts, and Connecticut. New Jersey and Rhode 
Island, upon all occasions, discovered a warm zeal for the independence of 
Vermont; and Maryland, till alarmed by the appearance of a connection between 
Canada and that State, entered deeply into the same views. These being small 
States, saw with an unfriendly eye the perspective of our growing greatness. In a 
review of these transactions we may trace some of the causes which would be 
likely to embroil the States with each other, if it should be their unpropitious destiny 
to become disunited. 

The competitions of commerce would be another fruitful source of contention. The 
States less favorably circumstanced would be desirous of escaping from the 
disadvantages of local situation, and of sharing in the advantages of their more 
fortunate neighbors. Each State, or separate confederacy, would pursue a system 
of commercial policy peculiar to itself. This would occasion distinctions, 
preferences, and exclusions, which would beget discontent. The habits of 
intercourse, on the basis of equal privileges, to which we have been accustomed 
since the earliest settlement of the country, would give a keener edge to those 
causes of discontent than they would naturally have independent of this 
circumstance. WE SHOULD BE READY TO DENOMINATE INJURIES THOSE 
THINGS WHICH WERE IN REALITY THE JUSTIFIABLE ACTS OF 
INDEPENDENT SOVEREIGNTIES CONSULTING A DISTINCT INTEREST. The 
spirit of enterprise, which characterizes the commercial part of America, has left 
no occasion of displaying itself unimproved. It is not at all probable that this 
unbridled spirit would pay much respect to those regulations of trade by which 
particular States might endeavor to secure exclusive benefits to their own citizens. 
The infractions of these regulations, on one side, the efforts to prevent and repel 
them, on the other, would naturally lead to outrages, and these to reprisals and 
wars. 

The opportunities which some States would have of rendering others tributary to 
them by commercial regulations would be impatiently submitted to by the tributary 

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States. The relative situation of New York, Connecticut, and New Jersey would 
afford an example of this kind. New York, from the necessities of revenue, must lay 
duties on her importations. A great part of these duties must be paid by the 
inhabitants of the two other States in the capacity of consumers of what we import. 
New York would neither be willing nor able to forego this advantage. Her citizens 
would not consent that a duty paid by them should be remitted in favor of the 
citizens of her neighbors; nor would it be practicable, if there were not this 
impediment in the way, to distinguish the customers in our own markets. Would 
Connecticut and New Jersey long submit to be taxed by New York for her 
exclusive benefit? Should we be long permitted to remain in the quiet and 
undisturbed enjoyment of a metropolis, from the possession of which we derived 
an advantage so odious to our neighbors, and, in their opinion, so oppressive? 
Should we be able to preserve it against the incumbent weight of Connecticut on 
the one side, and the co-operating pressure of New Jersey on the other? These 
are questions that temerity alone will answer in the affirmative. 

The public debt of the Union would be a further cause of collision between the 
separate States or confederacies. The apportionment, in the first instance, and the 
progressive extinguishment afterward, would be alike productive of ill-humor and 
animosity. How would it be possible to agree upon a rule of apportionment 
satisfactory to all? There is scarcely any that can be proposed which is entirely 
free from real objections. These, as usual, would be exaggerated by the adverse 
interest of the parties. There are even dissimilar views among the States as to the 
general principle of discharging the public debt. Some of them, either less 
impressed with the importance of national credit, or because their citizens have 
little, if any, immediate interest in the question, feel an indifference, if not a 
repugnance, to the payment of the domestic debt at any rate. These would be 
inclined to magnify the difficulties of a distribution. Others of them, a numerous 
body of whose citizens are creditors to the public beyond proportion of the State in 
the total amount of the national debt, would be strenuous for some equitable and 



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effective provision. The procrastinations of the former would excite the 
resentments of the latter. The settlement of a rule would, in the meantime, be 
postponed by real differences of opinion and affected delays. The citizens of the 
States interested would clamour; foreign powers would urge for the satisfaction of 
their just demands, and the peace of the States would be hazarded to the double 
contingency of external invasion and internal contention. 

Suppose the difficulties of agreeing upon a rule surmounted, and the 
apportionment made. Still there is great room to suppose that the rule agreed 
upon would, upon experiment, be found to bear harder upon some States than 
upon others. Those which were sufferers by it would naturally seek for a mitigation 
of the burden. The others would as naturally be disinclined to a revision, which was 
likely to end in an increase of their own incumbrances. Their refusal would be too 
plausible a pretext to the complaining States to withhold their contributions, not to 
be embraced with avidity; and the non-compliance of these States with their 
engagements would be a ground of bitter discussion and altercation. If even the 
rule adopted should in practice justify the equality of its principle, still 
delinquencies in payments on the part of some of the States would result from a 
diversity of other causesA — the real deficiency of resources; the mismanagement 
of their finances; accidental disorders in the management of the government; and, 
in addition to the rest, the reluctance with which men commonly part with money for 
purposes that have outlived the exigencies which produced them, and interfere 
with the supply of immediate wants. Delinquencies, from whatever causes, would 
be productive of complaints, recriminations, and quarrels. There is, perhaps, 
nothing more likely to disturb the tranquillity of nations than their being bound to 
mutual contributions for any common object that does not yield an equal and 
coincident benefit. For it is an observation, as true as it is trite, that there is nothing 
men differ so readily about as the payment of money. 

Laws in violation of private contracts, as they amount to aggressions on the rights 
of those States whose citizens are injured by them, maybe considered as another 

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probable source of hostility. We are not authorized to expect that a more liberal or 
more equitable spirit would preside over the legislations of the individual States 
hereafter, if unrestrained by any additional checks, than we have heretofore seen 
in too many instances disgracing their several codes. We have observed the 
disposition to retaliation excited in Connecticut inconsequence of the enormities 
perpetrated by the Legislature of Rhode Island; and we reasonably infer that, in 
similar cases, under other circumstances, a war, not of PARCHMENT, but of the 
sword, would chastise such atrocious breaches of moral obligation and social 
justice. 

The probability of incompatible alliances between the different States or 
confederacies and different foreign nations, and the effects of this situation upon 
the peace of the whole, have been sufficiently unfolded in some preceding papers. 
From the view they have exhibited of this part of the subject, this conclusion is to 
be drawn, that America, if not connected at all, or only by the feeble tie of a simple 
league, offensive and defensive, would, by the operation of such jarring alliances, 
be gradually entangled in all the pernicious labyrinths of European politics and 
wars; and by the destructive contentions of the parts into which she was divided, 
would be likely to become a prey to the artifices and machinations of powers 
equally the enemies of them all. Divide et impera(l) must be the motto of every 
nation that either hates or fears us. (2) 

PUBLIUS 

1. Divide and command. 

2. In order that the whole subject of these papers may as soon as possible be laid 
before the public, it is proposed to publish them four times aweekA — on Tuesday 
in the New York Packet and on Thursday in the Daily Advertiser. 



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FEDERALIST No. 8. The Consequences of 
Hostilities Between the States 

From the New York Packet. Tuesday, November 20, 1787. 

HAMILTON 

To the People of the State of New York: 

ASSUMING it therefore as an established truth that the several States, in case of 
disunion, or such combinations of them as might happen to be formed out of the 
wreck of the general Confederacy, would be subject to those vicissitudes of peace 
and war, of friendship and enmity, with each other, which have fallen to the lot of all 
neighboring nations not united under one government, let us enter into a concise 
detail of some of the consequences that would attend such a situation. 

War between the States, in the first period of their separate existence, would be 
accompanied with much greater distresses than it commonly is in those countries 
where regular military establishments have long obtained. The disciplined armies 
always kept on foot on the continent of Europe, though they bear a malignant 
aspect to liberty and economy, have, notwithstanding, been productive of the 
signal advantage of rendering sudden conquests impracticable, and of preventing 
that rapid desolation which used to mark the progress of war prior to their 
introduction. The art of fortification has contributed to the same ends. The nations 
of Europe are encircled with chains of fortified places, which mutually obstruct 



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invasion. Campaigns are wasted in reducing two or three frontier garrisons, to 
gain admittance into an enemy's country. Similar impediments occur at every step, 
to exhaust the strength and delay the progress of an invader. Formerly, an invading 
army would penetrate into the heart of a neighboring country almost as soon as 
intelligence of its approach could be received; but now a comparatively small force 
of disciplined troops, acting on the defensive, with the aid of posts, is able to 
impede, and finally to frustrate, the enterprises of one much more considerable. 
The history of war, in that quarter of the globe, is no longer a history of nations 
subdued and empires overturned, but of towns taken and retaken; of battles that 
decide nothing; of retreats more beneficial than victories; of much effort and little 
acquisition. 

In this country the scene would be altogether reversed. The jealousy of military 
establishments would postpone them as long as possible. The want of 
fortifications, leaving the frontiers of one state open to another, would facilitate 
inroads. The populous States would, with little difficulty, overrun their less populous 
neighbors. Conquests would be as easy to be made as difficult to be retained. 
War, therefore, would be desultory and predatory. PLUNDER and devastation 
ever march in the train of irregulars. The calamities of individuals would make the 
principal figure in the events which would characterize our military exploits. 

This picture is not too highly wrought; though, I confess, it would not long remain a 
just one. Safety from external danger is the most powerful director of national 
conduct. Even the ardent love of liberty will, after a time, give way to its dictates. 
The violent destruction of life and property incident to war, the continual effort and 
alarm attendant on a state of continual danger, will compel nations the most 
attached to liberty to resort for repose and security to institutions which have a 
tendency to destroy their civil and political rights. To be more safe, they at length 
become willing to run the risk of being less free. 

The institutions chiefly alluded to are STANDING ARMIES and the correspondent 

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appendages of military establishments. Standing armies, it is said, are not 
provided against in the new Constitution; and it is therefore inferred that they may 
exist under it.(l) Their existence, however, from the very terms of the proposition, 
is, at most, problematical and uncertain. But standing armies, it may be replied, 
must inevitably result from a dissolution of the Confederacy. Frequent war and 
constant apprehension, which require a state of as constant preparation, will 
infallibly produce them. The weaker States or confederacies would first have 
recourse to them, to put themselves upon an equality with their more potent 
neighbors. They would endeavor to supply the inferiority of population and 
resources by a more regular and effective system of defense, by disciplined 
troops, and by fortifications. They would, at the same time, be necessitated to 
strengthen the executive arm of government, in doing which their constitutions 
would acquire a progressive direction toward monarchy. It is of the nature of war to 
increase the executive at the expense of the legislative authority. 

The expedients which have been mentioned would soon give the States or 
confederacies that made use of them a superiority over their neighbors. Small 
states, or states of less natural strength, under vigorous governments, and with the 
assistance of disciplined armies, have often triumphed over large states, or states 
of greater natural strength, which have been destitute of these advantages. Neither 
the pride nor the safety of the more important States or confederacies would 
permit them long to submit to this mortifying and adventitious superiority. They 
would quickly resort to means similar to those by which it had been effected, to 
reinstate themselves in their lost pre-eminence. Thus, we should, in a little time, 
see established in every part of this country the same engines of despotism which 
have been the scourge of the Old World. This, at least, would be the natural course 
of things; and our reasonings will be the more likely to be just, in proportion as they 
are accommodated to this standard. 

These are not vague inferences drawn from supposed or speculative defects in a 
Constitution, the whole power of which is lodged in the hands of a people, or their 

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representatives and delegates, but they are solid conclusions, drawn from the 
natural and necessary progress of human affairs. 

It may, perhaps, be asked, by way of objection to this, why did not standing armies 
spring up out of the contentions which so often distracted the ancient republics of 
Greece? Different answers, equally satisfactory, may be given to this question. 
The industrious habits of the people of the present day, absorbed in the pursuits of 
gain, and devoted to the improvements of agriculture and commerce, are 
incompatible with the condition of a nation of soldiers, which was the true condition 
of the people of those republics. The means of revenue, which have been so 
greatly multiplied by the increase of gold and silver and of the arts of industry, and 
the science of finance, which is the offspring of modern times, concurring with the 
habits of nations, have produced an entire revolution in the system of war, and 
have rendered disciplined armies, distinct from the body of the citizens, the 
inseparable companions of frequent hostility. 

There is a wide difference, also, between military establishments in a country 
seldom exposed by its situation to internal invasions, and in one which is often 
subject to them, and always apprehensive of them. The rulers of the former can 
have no good pretext, if they are even so inclined, to keep on foot armies so 
numerous as must of necessity be maintained in the latter. These armies being, in 
the first case, rarely, if at all, called into activity for interior defense, the people are 
in no danger of being broken to military subordination. The laws are not 
accustomed to relaxations, in favor of military exigencies; the civil state remains in 
full vigor, neither corrupted, nor confounded with the principles or propensities of 
the other state. The smallness of the army renders the natural strength of the 
community an overmatch for it; and the citizens, not habituated to look up to the 
military power for protection, or to submit to its oppressions, neither love nor fear 
the soldiery; they view them with a spirit of jealous acquiescence in a necessary 
evil, and stand ready to resist a power which they suppose may be exerted to the 
prejudice of their rights. 

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The army under such circumstances may usefully aid the magistrate to suppress a 
small faction, or an occasional mob, or insurrection; but it will be unable to enforce 
encroachments against the united efforts of the great body of the people. 

In a country in the predicament last described, the contrary of all this happens. The 
perpetual menacings of danger oblige the government to be always prepared to 
repel it; its armies must be numerous enough for instant defense. The continual 
necessity for their services enhances the importance of the soldier, and 
proportionably degrades the condition of the citizen. The military state becomes 
elevated above the civil. The inhabitants of territories, often the theatre of war, are 
unavoidably subjected to frequent infringements on their rights, which serve to 
weaken their sense of those rights; and by degrees the people are brought to 
consider the soldiery not only as their protectors, but as their superiors. The 
transition from this disposition to that of considering them masters, is neither 
remote nor difficult; but it is very difficult to prevail upon a people under such 
impressions, to make a bold or effectual resistance to usurpations supported by 
the military power. 

The kingdom of Great Britain falls within the first description. An insular situation, 
and a powerful marine, guarding it in a great measure against the possibility of 
foreign invasion, supersede the necessity of a numerous army within the kingdom. 
A sufficient force to make head against a sudden descent, till the militia could 
have time to rally and embody, is all that has been deemed requisite. No motive of 
national policy has demanded, nor would public opinion have tolerated, a larger 
number of troops upon its domestic establishment. There has been, for a long time 
past, little room for the operation of the other causes, which have been 
enumerated as the consequences of internal war. This peculiar felicity of situation 
has, in a great degree, contributed to preserve the liberty which that country to this 
day enjoys, in spite of the prevalent venality and corruption. If, on the contrary, 
Britain had been situated on the continent, and had been compelled, as she would 

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have been, by that situation, to make her military establishments at home 
coextensive with those of the other great powers of Europe, she, like them, would 
in all probability be, at this day, a victim to the absolute power of a single man. It is 
possible, though not easy, that the people of that island may be enslaved from 
other causes; but it cannot be by the prowess of an army so inconsiderable as that 
which has been usually kept up within the kingdom. 

If we are wise enough to preserve the Union we may for ages enjoy an advantage 
similar to that of an insulated situation. Europe is at a great distance from us. Her 
colonies in our vicinity will be likely to continue too much disproportioned in 
strength to be able to give us any dangerous annoyance. Extensive military 
establishments cannot, in this position, be necessary to our security. But if we 
should be disunited, and the integral parts should either remain separated, or, 
which is most probable, should be thrown together into two or three confederacies, 
we should be, in a short course of time, in the predicament of the continental 
powers of EuropeA — our liberties would be a prey to the means of defending 
ourselves against the ambition and jealousy of each other. 

This is an idea not superficial or futile, but solid and weighty. It deserves the most 
serious and mature consideration of every prudent and honest man of whatever 
party. If such men will make a firm and solemn pause, and meditate 
dispassionately on the importance of this interesting idea; if they will contemplate 
it in all its attitudes, and trace it to all its consequences, they will not hesitate to part 
with trivial objections to a Constitution, the rejection of which would in all probability 
put a final period to the Union. The airy phantoms that flit before the distempered 
imaginations of some of its adversaries would quickly give place to the more 
substantial forms of dangers, real, certain, and formidable. 

PUBLIUS 



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1. This objection will be fully examined in its proper place, and it will be shown that 
the only natural precaution which could have been taken on this subject has been 
taken; and a much better one than is to be found in any constitution that has been 
heretofore framed in America, most of which contain no guard at all on this 
subject. 



FEDERALIST No. 9. The Union as a Safeguard 
Against Domestic Faction and Insurrection 

For the Independent Journal. Wednesday, November 21, 

1787 

HAMILTON 

To the People of the State of New York: 

A FIRM Union will be of the utmost moment to the peace and liberty of the States, 
as a barrier against domestic faction and insurrection. It is impossible to read the 
history of the petty republics of Greece and Italy without feeling sensations of 
horror and disgust at the distractions with which they were continually agitated, and 
at the rapid succession of revolutions by which they were kept in a state of 
perpetual vibration between the extremes of tyranny and anarchy. If they exhibit 
occasional calms, these only serve as short-lived contrast to the furious storms 
that are to succeed. If now and then intervals of felicity open to view, we behold 



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iicc; yuvci i n i ici n ao n iuui ioioici il vviui li ic uiuci ui ouuiciy, a.\ iu i icivc n luuiycu 

themselves in malicious exultation over its friends and partisans. Happily for 
mankind, stupendous fabrics reared on the basis of liberty, which have flourished 
for ages, have, in a few glorious instances, refuted their gloomy sophisms. And, I 
trust, America will be the broad and solid foundation of other edifices, not less 
magnificent, which will be equally permanent monuments of their errors. 

But it is not to be denied that the portraits they have sketched of republican 
government were too just copies of the originals from which they were taken. If it 
had been found impracticable to have devised models of a more perfect structure, 
the enlightened friends to liberty would have been obliged to abandon the cause of 
that species of government as indefensible. The science of politics, however, like 
most other sciences, has received great improvement. The efficacy of various 
principles is now well understood, which were either not known at all, or imperfectly 
known to the ancients. The regular distribution of power into distinct departments; 
the introduction of legislative balances and checks; the institution of courts 
composed of judges holding their offices during good behavior; the representation 
of the people in the legislature by deputies of their own election: these are wholly 
new discoveries, or have made their principal progress towards perfection in 
modern times. They are means, and powerful means, by which the excellences of 



1 1 ic uuiiiy ui a. v^ui ncuciauy, ao wen lu ou|J|jicoo lauuun anu Luyuaiu li ic ii ilci i icu 

tranquillity of States, as to increase their external force and security, is in reality not 
a new idea. It has been practiced upon in different countries and ages, and has 
received the sanction of the most approved writers on the subject of politics. The 
opponents of the plan proposed have, with great assiduity, cited and circulated the 
observations of Montesquieu on the necessity of a contracted territory for a 
republican government. But they seem not to have been apprised of the 
sentiments of that great man expressed in another part of his work, nor to have 
adverted to the consequences of the principle to which they subscribe with such 
ready acquiescence. 

When Montesquieu recommends a small extent for republics, the standards he 
had in view were of dimensions far short of the limits of almost every one of these 
States. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, 
nor Georgia can by any means be compared with the models from which he 
reasoned and to which the terms of his description apply. If we therefore take his 
ideas on this point as the criterion of truth, we shall be driven to the alternative 
either of taking refuge at once in the arms of monarchy, or of splitting ourselves 
into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched 
nurseries of unceasing discord, and the miserable objects of universal pity or 



uiuiaic a icuuluuii ui li ic oiz_t ui li ic iiiuic uui Diuciauic ivii_iviDi_r\o ui li ic ui iiui i, 

but would not militate against their being all comprehended in one confederate 
government. And this is the true question, in the discussion of which we are at 
present interested. 

So far are the suggestions of Montesquieu from standing in opposition to a 
general Union of the States, that he explicitly treats of a confederate republic as 
the expedient for extending the sphere of popular government, and reconciling the 
advantages of monarchy with those of republicanism. 

"It is very probable," (says he(l)) "that mankind would have been obliged at length 
to live constantly under the government of a single person, had they not contrived a 
kind of constitution that has all the internal advantages of a republican, together 
with the external force of a monarchical government. I mean a CONFEDERATE 
REPUBLIC." 

"This form of government is a convention by which several smaller STATES agree 
to become members of a larger ONE, which they intend to form. It is a kind of 
assemblage of societies that constitute a new one, capable of increasing, by 
means of new associations, till they arrive to such a degree of power as to be able 



"Should a popular insurrection happen in one of the confederate states the others 
are able to quell it. Should abuses creep into one part, they are reformed by those 
that remain sound. The state may be destroyed on one side, and not on the other; 
the confederacy may be dissolved, and the confederates preserve their 
sovereignty." 

"As this government is composed of small republics, it enjoys the internal 
happiness of each; and with respect to its external situation, it is possessed, by 
means of the association, of all the advantages of large monarchies." 

I have thought it proper to quote at length these interesting passages, because 
they contain a luminous abridgment of the principal arguments in favor of the 
Union, and must effectually remove the false impressions which a misapplication 
of other parts of the work was calculated to make. They have, at the same time, an 
intimate connection with the more immediate design of this paper; which is, to 
illustrate the tendency of the Union to repress domestic faction and insurrection. 

A distinction, more subtle than accurate, has been raised between a 
CONFEDERACY and a CONSOLIDATION of the States. The essential 



course of this investigation that as far as the principle contended for has prevailed, 
it has been the cause of incurable disorder and imbecility in the government. 

The definition of a CONFEDERATE REPUBLIC seems simply to be "an 
assemblage of societies," or an association of two or more states into one state. 
The extent, modifications, and objects of the federal authority are mere matters of 
discretion. So long as the separate organization of the members be not abolished; 
so long as it exists, by a constitutional necessity, for local purposes; though it 
should be in perfect subordination to the general authority of the union, it would still 
be, in fact and in theory, an association of states, or a confederacy. The proposed 
Constitution, so far from implying an abolition of the State governments, makes 
them constituent parts of the national sovereignty, by allowing them a direct 
representation in the Senate, and leaves in their possession certain exclusive and 
very important portions of sovereign power. This fully corresponds, in every 
rational import of the terms, with the idea of a federal government. 

In the Lycian confederacy, which consisted of twenty-three CITIES or republics, the 
largest were entitled to THREE votes in the COMMON COUNCIL, those of the 
middle class to TWO, and the smallest to ONE. The COMMON COUNCIL had the 
appointment of all the judges and magistrates of the respective CITIES. This was 



FEDERALIST No. 10. The Same Subject 

Continued (The Union as a Safeguard Against 

Domestic Faction and Insurrection) 

From the Daily Advertiser. Thursday, November 22, 1787. 

MADISON 

To the People of the State of New York: 

AMONG the numerous advantages promised by a well constructed Union, none 
deserves to be more accurately developed than its tendency to break and control 



effectually obviated the danger on this side, as was wished and expected. 
Complaints are everywhere heard from our most considerate and virtuous citizens, 
equally the friends of public and private faith, and of public and personal liberty, 
that our governments are too unstable, that the public good is disregarded in the 
conflicts of rival parties, and that measures are too often decided, not according to 
the rules of justice and the rights of the minor party, but by the superior force of an 
interested and overbearing majority. However anxiously we may wish that these 
complaints had no foundation, the evidence, of known facts will not permit us to 
deny that they are in some degree true. It will be found, indeed, on a candid review 
of our situation, that some of the distresses under which we labor have been 
erroneously charged on the operation of our governments; but it will be found, at 
the same time, that other causes will not alone account for many of our heaviest 
misfortunes; and, particularly, for that prevailing and increasing distrust of public 
engagements, and alarm for private rights, which are echoed from one end of the 
continent to the other. These must be chiefly, if not wholly, effects of the 
unsteadiness and injustice with which a factious spirit has tainted our public 
administrations. 

By a faction, I understand a number of citizens, whether amounting to a majority or 



disease. Liberty is to faction what air is to fire, an aliment without which it instantly 
expires. But it could not be less folly to abolish liberty, which is essential to political 
life, because it nourishes faction, than it would be to wish the annihilation of air, 
which is essential to animal life, because it imparts to fire its destructive agency. 

The second expedient is as impracticable as the first would be unwise. As long as 
the reason of man continues fallible, and he is at liberty to exercise it, different 
opinions will be formed. As long as the connection subsists between his reason 
and his self-love, his opinions and his passions will have a reciprocal influence on 
each other; and the former will be objects to which the latter will attach themselves. 
The diversity in the faculties of men, from which the rights of property originate, is 
not less an insuperable obstacle to a uniformity of interests. The protection of 
these faculties is the first object of government. From the protection of different 
and unequal faculties of acquiring property, the possession of different degrees 
and kinds of property immediately results; and from the influence of these on the 
sentiments and views of the respective proprietors, ensues a division of the 
society into different interests and parties. 

The latent causes of faction are thus sown in the nature of man; and we see them 
everywhere brought into different degrees of activity, according to the different 



been the various and unequal distribution of property. Those who hold and those 
who are without property have ever formed distinct interests in society. Those who 
are creditors, and those who are debtors, fall under a like discrimination. A landed 
interest, a manufacturing interest, a mercantile interest, a moneyed interest, with 
many lesser interests, grow up of necessity in civilized nations, and divide them 
into different classes, actuated by different sentiments and views. The regulation of 
these various and interfering interests forms the principal task of modern 
legislation, and involves the spirit of party and faction in the necessary and 
ordinary operations of the government. 

No man is allowed to be a judge in his own cause, because his interest would 
certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, 
nay with greater reason, a body of men are unfit to be both judges and parties at 
the same time; yet what are many of the most important acts of legislation, but so 
many judicial determinations, not indeed concerning the rights of single persons, 
but concerning the rights of large bodies of citizens? And what are the different 
classes of legislators but advocates and parties to the causes which they 
determine? Is a law proposed concerning private debts? It is a question to which 
the creditors are parties on one side and the debtors on the other. Justice ought to 



It is in vain to say that enlightened statesmen will be able to adjust these clashing 
interests, and render them all subservient to the public good. Enlightened 
statesmen will not always be at the helm. Nor, in many cases, can such an 
adjustment be made at all without taking into view indirect and remote 
considerations, which will rarely prevail over the immediate interest which one 
party may find in disregarding the rights of another or the good of the whole. 

The inference to which we are brought is, that the CAUSES of faction cannot be 
removed, and that relief is only to be sought in the means of controlling its 
EFFECTS. 

If a faction consists of less than a majority, relief is supplied by the republican 
principle, which enables the majority to defeat its sinister views by regular vote. It 
may clog the administration, it may convulse the society; but itwillbe unable to 
execute and mask its violence under the forms of the Constitution. When a majority 
is included in a faction, the form of popular government, on the other hand, enables 
it to sacrifice to its ruling passion or interest both the public good and the rights of 
other citizens. To secure the public good and private rights against the danger of 
such a faction, and at the same time to preserve the spirit and the form of popular 



cu i ciucl|ucilc uui iliui. i i icy ClIC I lUl IUUI IU LU UC OUUI I Ul I LI IC II ijuoliuc cii IU VIUICI IL.C Ul 

individuals, and lose their efficacy in proportion to the number combined together, 
that is, in proportion as their efficacy becomes needful. 

From this view of the subject it may be concluded that a pure democracy, by which 
I mean a society consisting of a small number of citizens, who assemble and 
administer the government in person, can admit of no cure for the mischiefs of 
faction. A common passion or interest will, in almost every case, be felt by a 
majority of the whole; a communication and concert result from the form of 
government itself; and there is nothing to check the inducements to sacrifice the 
weaker party or an obnoxious individual. Hence it is that such democracies have 
ever been spectacles of turbulence and contention; have ever been found 
incompatible with personal security or the rights of property; and have in general 
been as short in their lives as they have been violent in their deaths. Theoretic 
politicians, who have patronized this species of government, have erroneously 
supposed that by reducing mankind to a perfect equality in their political rights, 
they would, at the same time, be perfectly equalized and assimilated in their 
possessions, their opinions, and their passions. 

A republic, by which I mean a government in which the scheme of representation 



whose wisdom may best discern the true interest of their country, and whose 
patriotism and love of justice will be least likely to sacrifice it to temporary or 
partial considerations. Under such a regulation, it may well happen that the public 
voice, pronounced by the representatives of the people, will be more consonant to 
the public good than if pronounced by the people themselves, convened for the 
purpose. On the other hand, the effect may be inverted. Men of factious tempers, 
of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by 
other means, first obtain the suffrages, and then betray the interests, of the people. 
The question resulting is, whether small or extensive republics are more favorable 
to the election of proper guardians of the public weal; and it is clearly decided in 
favor of the latter by two obvious considerations: 

In the first place, it is to be remarked that, however small the republic may be, the 
representatives must be raised to a certain number, in order to guard against the 
cabals of a few; and that, however large it may be, they must be limited to a certain 
number, in order to guard against the confusion of a multitude. Hence, the number 
of representatives in the two cases not being in proportion to that of the two 
constituents, and being proportionally greater in the small republic, it follows that, if 
the proportion of fit characters be not less in the large than in the small republic, 



number of electors, you render the representatives too little acquainted with all 
their local circumstances and lesser interests; as by reducing it too much, you 
render him unduly attached to these, and too little fit to comprehend and pursue 
great and national objects. The federal Constitution forms a happy combination in 
this respect; the great and aggregate interests being referred to the national, the 
local and particular to the State legislatures. 

The other point of difference is, the greater number of citizens and extent of 
territory which may be brought within the compass of republican than of 
democratic government; and it is this circumstance principally which renders 
factious combinations less to be dreaded in the former than in the latter. The 
smaller the society, the fewer probably will be the distinct parties and interests 
composing it; the fewer the distinct parties and interests, the more frequently will a 
majority be found of the same party; and the smaller the number of individuals 
composing a majority, and the smaller the compass within which they are placed, 
the more easily will they concert and execute their plans of oppression. Extend the 
sphere, and you take in a greater variety of parties and interests; you make it less 
probable that a majority of the whole will have a common motive to invade the 
rights of other citizens; or if such a common motive exists, it will be more difficult 



lll\Ciy LU |JU33C33 LI IC5C ICL|UIOILC CI IUU VVI I ICI ILO. UUCO IL UUI IOIOL III UlCyiCdlCI 

security afforded by a greater variety of parties, against the event of any one party 
being able to outnumber and oppress the rest? In an equal degree does the 
increased variety of parties comprised within the Union, increase this security. 
Does it, in fine, consist in the greater obstacles opposed to the concert and 
accomplishment of the secret wishes of an unjust and interested majority? Here, 
again, the extent of the Union gives it the most palpable advantage. 

The influence of factious leaders may kindle a flame within their particular States, 
but will be unable to spread a general conflagration through the other States. A 
religious sect may degenerate into a political faction in a part of the Confederacy; 
but the variety of sects dispersed over the entire face of it must secure the national 
councils against any danger from that source. A rage for paper money, for an 
abolition of debts, for an equal division of property, or for any other improper or 
wicked project, will be less apt to pervade the whole body of the Union than a 
particular member of it; in the same proportion as such a malady is more likely to 
taint a particular county or district, than an entire State. 

In the extent and proper structure of the Union, therefore, we behold a republican 
remedy for the diseases most incident to republican government. And according 



rcespeui iu uummeruidi rceiauuns anu a. iMavy 
For the Independent Journal. Saturday, November 24, 1787 

HAMILTON 

To the People of the State of New York: 

THE importance of the Union, in a commercial light, is one of those points about 
which there is least room to entertain a difference of opinion, and which has, in 
fact, commanded the most general assent of men who have any acquaintance with 
the subject. This applies as well to our intercourse with foreign countries as with 
each other. 

There are appearances to authorize a supposition that the adventurous spirit, 
which distinguishes the commercial character of America, has already excited 
uneasy sensations in several of the maritime powers of Europe. They seem to be 
apprehensive of our too great interference in that carrying trade, which is the 
support of their navigation and the foundation of their naval strength. Those of them 



If we continue united, we may counteract a policy so unfriendly to our prosperity in 
a variety of ways. By prohibitory regulations, extending, at the same time, 
throughout the States, we may oblige foreign countries to bid against each other, 
for the privileges of our markets. This assertion will not appear chimerical to those 
who are able to appreciate the importance of the markets of three millions of 
peopleA — increasing in rapid progression, for the most part exclusively addicted 
to agriculture, and likely from local circumstances to remain soA — to any 
manufacturing nation; and the immense difference there would be to the trade and 
navigation of such a nation, between a direct communication in its own ships, and 
an indirect conveyance of its products and returns, to and from America, in the 
ships of another country. Suppose, for instance, we had a government in America, 
capable of excluding Great Britain (with whom we have at present no treaty of 
commerce) from all our ports; what would be the probable operation of this step 
upon her politics? Would it not enable us to negotiate, with the fairest prospect of 
success, for commercial privileges of the most valuable and extensive kind, in the 
dominions of that kingdom? When these questions have been asked, upon other 
occasions, they have received a plausible, but not a solid or satisfactory answer. It 
has been said that prohibitions on our part would produce no change in the system 



AA IIICUUIC OUIDIUCiailUII Ul LI IC UUJCULO OULJLJCOLCU Uy LI ICO C LjUCOLIUI IO WIN JUOLIiy a 

belief that the real disadvantages to Britain from such a state of things, conspiring 
with the pre-possessions of a great part of the nation in favor of the American 
trade, and with the importunities of the West India islands, would produce a 
relaxation in her present system, and would let us into the enjoyment of privileges 
in the markets of those islands elsewhere, from which our trade would derive the 
most substantial benefits. Such a point gained from the British government, and 
which could not be expected without an equivalent in exemptions and immunities 
in our markets, would be likely to have a correspondent effect on the conduct of 
other nations, who would not be inclined to see themselves altogether supplanted 
in our trade. 

A further resource for influencing the conduct of European nations toward us, in 
this respect, would arise from the establishment of a federal navy. There can be no 
doubt that the continuance of the Union under an efficient government would put it 
in our power, at a period not very distant, to create a navy which, if it could not vie 
with those of the great maritime powers, would at least be of respectable weight if 
thrown into the scale of either of two contending parties. This would be more 
peculiarly the case in relation to operations in the West Indies. A few ships of the 
line, sent opportunely to the reinforcement of either side, would often be sufficient 



dui 111 u ic icvcioc ui u mo cnyiuic oilucluuii, vvc diian uidL/Uvci li iciL U ic i ivaioi ll|JO Ul 

the parts would make them checks upon each other, and would frustrate all the 
tempting advantages which nature has kindly placed within our reach. In a state so 
insignificant our commerce would be a prey to the wanton intermeddlings of all 
nations at war with each other; who, having nothing to fear from us, would with little 
scruple or remorse, supply their wants by depredations on our property as often as 
it fell in their way. The rights of neutrality will only be respected when they are 
defended by an adequate power. A nation, despicable by its weakness, forfeits 
even the privilege of being neutral. 

Under a vigorous national government, the natural strength and resources of the 
country, directed to a common interest, would baffle all the combinations of 
European jealousy to restrain our growth. This situation would even take away the 
motive to such combinations, by inducing an impracticability of success. An active 
commerce, an extensive navigation, and a flourishing marine would then be the 
offspring of moral and physical necessity. We might defy the little arts of the little 
politicians to control or vary the irresistible and unchangeable course of nature. 

But in a state of disunion, these combinations might exist and might operate with 
success. It would be in the power of the maritime nations, availing themselves of 



There are rights of great moment to the trade of America which are rights of the 
UnionA — I allude to the fisheries, to the navigation of the Western lakes, and to 
that of the Mississippi. The dissolution of the Confederacy would give room for 
delicate questions concerning the future existence of these rights; which the 
interest of more powerful partners would hardly fail to solve to our disadvantage. 
The disposition of Spain with regard to the Mississippi needs no comment. 
France and Britain are concerned with us in the fisheries, and view them as of the 
utmost moment to their navigation. They, of course, would hardly remain long 
indifferent to that decided mastery, of which experience has shown us to be 
possessed in this valuable branch of traffic, and by which we are able to undersell 
those nations in their own markets. What more natural than that they should be 
disposed to exclude from the lists such dangerous competitors? 

This branch of trade ought not to be considered as a partial benefit. All the 
navigating States may, in different degrees, advantageously participate in it, and 
under circumstances of a greater extension of mercantile capital, would not be 
unlikely to do it. As a nursery of seamen, it now is, or when time shall have more 
nearly assimilated the principles of navigation in the several States, will become, a 
universal resource. To the establishment of a navy, it must be indispensable. 



vvi ii ui i li ic i icivy 1 1 ii y i u uc uui i ipucscu, n ui iicny uui ioliuulcu ui ouuuiciii vvuuu, vvuuiu 

be of signal importance, either in the view of naval strength or of national economy. 
Some of the Southern and of the Middle States yield a greater plenty of iron, and 
of better quality. Seamen must chiefly be drawn from the Northern hive. The 
necessity of naval protection to external or maritime commerce does not require a 
particular elucidation, no more than the conduciveness of that species of 
commerce to the prosperity of a navy. 

An unrestrained intercourse between the States themselves will advance the trade 
of each by an interchange of their respective productions, not only for the supply of 
reciprocal wants at home, but for exportation to foreign markets. The veins of 
commerce in every part will be replenished, and will acquire additional motion and 
vigor from a free circulation of the commodities of every part. Commercial 
enterprise will have much greater scope, from the diversity in the productions of 
different States. When the staple of one fails from a bad harvest or unproductive 
crop, it can call to its aid the staple of another. The variety, not less than the value, 
of products for exportation contributes to the activity of foreign commerce. It can 
be conducted upon much better terms with a large number of materials of a given 
value than with a small number of materials of the same value; arising from the 
competitions of trade and from the fluctuations of markets. Particular articles may 



ocu i ic ciiuo, lino iiilciuuuioc vvuuiu uc icucicu, 1 1 ilci i u|jlcu , a\ iu iianuvvcu uy a 

multiplicity of causes, which in the course of these papers have been amply 
detailed. A unity of commercial, as well as political, interests, can only result from a 
unity of government. 

There are other points of view in which this subject might be placed, of a striking 
and animating kind. But they would lead us too far into the regions of futurity, and 
would involve topics not proper for a newspaper discussion. I shall briefly observe, 
that our situation invites and our interests prompt us to aim at an ascendant in the 
system of American affairs. The world may politically, as well as geographically, 
be divided into four parts, each having a distinct set of interests. Unhappily for the 
other three, Europe, by her arms and by her negotiations, by force and by fraud, 
has, in different degrees, extended her dominion over them all. Africa, Asia, and 
America, have successively felt her domination. The superiority she has long 
maintained has tempted her to plume herself as the Mistress of the World, and to 
consider the rest of mankind as created for her benefit. Men admired as profound 
philosophers have, in direct terms, attributed to her inhabitants a physical 
superiority, and have gravely asserted that all animals, and with them the human 
species, degenerate in AmericaA — that even dogs cease to bark after having 
breathed awhile in our atmosphere.(l) Facts have too long supported these 



FEDERALIST No. 12. The Utility of the Union In 

Respect to Revenue 

From the New York Packet. Tuesday, November 27, 1787. 

HAMILTON 

To the People of the State of New York: 

THE effects of Union upon the commercial prosperity of the States have been 
sufficiently delineated. Its tendency to promote the interests of revenue will be the 
subject of our present inquiry. 

The prosperity of commerce is now perceived and acknowledged by all 
enlightened statesmen to be the most useful as well as the most productive source 



interwoven. It has been found in various countries that, in proportion as commerce 
has flourished, land has risen in value. And how could it have happened 
otherwise? Could that which procures a freer vent for the products of the earth, 
which furnishes new incitements to the cultivation of land, which is the most 
powerful instrument in increasing the quantity of money in a stateA — could that, in 
fine, which is the faithful handmaid of labor and industry, in every shape, fail to 
augment that article, which is the prolific parent of far the greatest part of the 
objects upon which they are exerted? It is astonishing that so simple a truth should 
ever have had an adversary; and it is one, among a multitude of proofs, how apt a 
spirit of ill-informed jealousy, or of too great abstraction and refinement, is to lead 
men astray from the plainest truths of reason and conviction. 

The ability of a country to pay taxes must always be proportioned, in a great 
degree, to the quantity of money in circulation, and to the celerity with which it 
circulates. Commerce, contributing to both these objects, must of necessity render 
the payment of taxes easier, and facilitate the requisite supplies to the treasury. 
The hereditary dominions of the Emperor of Germany contain a great extent of 
fertile, cultivated, and populous territory, a large proportion of which is situated in 
mild and luxuriant climates. In some parts of this territory are to be found the best 



iavvo nave in vcuii uccn 1 1 luiupncu, i icvv iiicuiuuo lu ciiiuil.c li ic uuiicuuui i i lave n i 

vain been tried; the public expectation has been uniformly disappointed, and the 
treasuries of the States have remained empty. The popular system of 
administration inherent in the nature of popular government, coinciding with the 
real scarcity of money incident to a languid and mutilated state of trade, has 
hitherto defeated every experiment for extensive collections, and has at length 
taught the different legislatures the folly of attempting them. 

No person acquainted with what happens in other countries will be surprised at 
this circumstance. In so opulent a nation as that of Britain, where direct taxes from 
superior wealth must be much more tolerable, and, from the vigor of the 
government, much more practicable, than in America, far the greatest part of the 
national revenue is derived from taxes of the indirect kind, from imposts, and from 
excises. Duties on imported articles form a large branch of this latter description. 

In America, it is evident that we must a long time depend for the means of revenue 
chiefly on such duties. In most parts of it, excises must be confined within a narrow 
compass. The genius of the people will ill brook the inquisitive and peremptory 
spirit of excise laws. The pockets of the farmers, on the other hand, will reluctantly 
yield but scanty supplies, in the unwelcome shape of impositions on their houses 



cu iovvci u ic |jui|juoc;o ui iiicitMiiy li ic ocu i ic i cue ui uuuco iiiuic piuuuL.uvc, anu ui 

putting it into the power of the government to increase the rate without prejudice to 
trade. 

The relative situation of these States; the number of rivers with which they are 
intersected, and of bays that wash there shores; the facility of communication in 
every direction; the affinity of language and manners; the familiar habits of 
intercourse^ — all these are circumstances that would conspire to render an illicit 
trade between them a matter of little difficulty, and would insure frequent evasions 
of the commercial regulations of each other. The separate States or 
confederacies would be necessitated by mutual jealousy to avoid the temptations 
to that kind of trade by the lowness of their duties. The temper of our governments, 
for a long time to come, would not permit those rigorous precautions by which the 
European nations guard the avenues into their respective countries, as well by 
land as by water; and which, even there, are found insufficient obstacles to the 
adventurous stratagems of avarice. 

In France, there is an army of patrols (as they are called) constantly employed to 
secure their fiscal regulations against the inroads of the dealers in contraband 
trade. Mr. Neckar computes the number of these patrols at upwards of twenty 



vciiuciuic ucuyuco, vvuuiu icuciy unuuoc lu iicuicuu li ici i dcivccj lu li ic lui i ipn^cucu 

and critical perils which would attend attempts to unlade prior to their coming into 
port. They would have to dread both the dangers of the coast, and of detection, as 
well after as before their arrival at the places of their final destination. An ordinary 
degree of vigilance would be competent to the prevention of any material 
infractions upon the rights of the revenue. A few armed vessels, judiciously 
stationed at the entrances of our ports, might at a small expense be made useful 
sentinels of the laws. And the government having the same interest to provide 
against violations everywhere, the co-operation of its measures in each State 
would have a powerful tendency to render them effectual. Here also we should 
preserve by Union, an advantage which nature holds out to us, and which would be 
relinquished by separation. The United States lie at a great distance from Europe, 
and at a considerable distance from all other places with which they would have 
extensive connections of foreign trade. The passage from them to us, in a few 
hours, or in a single night, as between the coasts of France and Britain, and of 
other neighboring nations, would be impracticable. This is a prodigious security 
against a direct contraband with foreign countries; but a circuitous contraband to 
one State, through the medium of another, would be both easy and safe. The 
difference between a direct importation from abroad, and an indirect importation 



cuiiuuiii. iiic oniric: ciili^ic ui cuuciii opinio, ui iuci icuciai icyuiauui i, iinyinuc 

made to furnish a considerable revenue. Upon a ratio to the importation into this 
State, the whole quantity imported into the United States maybe estimated at four 
millions of gallons; which, at a shilling per gallon, would produce two hundred 
thousand pounds. That article would well bear this rate of duty; and if it should tend 
to diminish the consumption of it, such an effect would be equally favorable to the 
agriculture, to the economy, to the morals, and to the health of the society. There 
is, perhaps, nothing so much a subject of national extravagance as these spirits. 

What will be the consequence, if we are not able to avail ourselves of the resource 
in question in its full extent? A nation cannot long exist without revenues. Destitute 
of this essential support, it must resign its independence, and sink into the 
degraded condition of a province. This is an extremity to which no government will 
of choice accede. Revenue, therefore, must be had at all events. In this country, if 
the principal part be not drawn from commerce, it must fall with oppressive weight 
upon land. It has been already intimated that excises, in their true signification, are 
too little in unison with the feelings of the people, to admit of great use being made 
of that mode of taxation; nor, indeed, in the States where almost the sole 
employment is agriculture, are the objects proper for excise sufficiently numerous 
to permit very ample collections in that way. Personal estate (as has been before 



its security. Thus we shall not even have the consolations of a full treasury, to atone 
for the oppression of that valuable class of the citizens who are employed in the 
cultivation of the soil. But public and private distress will keep pace with each other 
in gloomy concert; and unite in deploring the infatuation of those counsels which 
led to disunion. 

PUBLIUS 

1. If my memory be right they amount to twenty per cent. 



FEDERALIST No. 13. Advantage of the Union in 
Respect to Economy in Government 



uit: oiciLtii) ciit: milieu unutM unt: yuvtMiinitMii, mere win ue uui une iiduuiidi uivii ii£>i 

to support; if they are divided into several confederacies, there will be as many 
different national civil lists to be provided forA — and each of them, as to the 
principal departments, coextensive with that which would be necessary for a 
government of the whole. The entire separation of the States into thirteen 
unconnected sovereignties is a project too extravagant and too replete with 
danger to have many advocates. The ideas of men who speculate upon the 
dismemberment of the empire seem generally turned toward three 
confederaciesA — one consisting of the four Northern, another of the four Middle, 
and a third of the five Southern States. There is little probability that there would be 
a greater number. According to this distribution, each confederacy would 
comprise an extent of territory larger than that of the kingdom of Great Britain. No 
well-informed man will suppose that the affairs of such a confederacy can be 
properly regulated by a government less comprehensive in its organs or 
institutions than that which has been proposed by the convention. When the 
dimensions of a State attain to a certain magnitude, it requires the same energy of 
government and the same forms of administration which are requisite in one of 
much greater extent. This idea admits not of precise demonstration, because 
there is no rule by which we can measure the momentum of civil power necessary 



uiviucu vvuuiu icu|uiic a. yuvci i n i ici il iiul icaa lui i ipi ci ici divc li icii i u ic ui ic 

proposed, will be strengthened by another supposition, more probable than that 
which presents us with three confederacies as the alternative to a general Union. If 
we attend carefully to geographical and commercial considerations, in conjunction 
with the habits and prejudices of the different States, we shall be led to conclude 
that in case of disunion they will most naturally league themselves under two 
governments. The four Eastern States, from all the causes that form the links of 
national sympathy and connection, may with certainty be expected to unite. New 
York, situated as she is, would never be unwise enough to oppose a feeble and 
unsupported flank to the weight of that confederacy. There are other obvious 
reasons that would facilitate her accession to it. New Jersey is too small a State to 
think of being a frontier, in opposition to this still more powerful combination; nor 
do there appear to be any obstacles to her admission into it. Even Pennsylvania 
would have strong inducements to join the Northern league. An active foreign 
commerce, on the basis of her own navigation, is her true policy, and coincides 
with the opinions and dispositions of her citizens. The more Southern States, from 
various circumstances, may not think themselves much interested in the 
encouragement of navigation. They may prefer a system which would give 
unlimited scope to all nations to be the carriers as well as the purchasers of their 



vvi iuic i i no icrncruuuii iiiuol nave yicai vvciyin 111 uuviciuiiy u lai uujculiui i iu u ic 

proposed plan, which is founded on the principle of expense; an objection, 
however, which, when we come to take a nearer view of it, will appear in every light 
to stand on mistaken ground. 

If, in addition to the consideration of a plurality of civil lists, we take into view the 
number of persons who must necessarily be employed to guard the inland 
communication between the different confederacies against illicit trade, and who 
in time will infallibly spring up out of the necessities of revenue; and if we also take 
into view the military establishments which it has been shown would unavoidably 
result from the jealousies and conflicts of the several nations into which the States 
would be divided, we shall clearly discover that a separation would be not less 
injurious to the economy, than to the tranquillity, commerce, revenue, and liberty of 
every part. 

PUBLIUS 



WE HAVE seen the necessity of the Union, as our bulwark against foreign danger, 
as the conservator of peace among ourselves, as the guardian of our commerce 
and other common interests, as the only substitute for those military 
establishments which have subverted the liberties of the Old World, and as the 
proper antidote for the diseases of faction, which have proved fatal to other 
popular governments, and of which alarming symptoms have been betrayed by our 
own. All that remains, within this branch of our inquiries, is to take notice of an 
objection that may be drawn from the great extent of country which the Union 
embraces. A few observations on this subject will be the more proper, as it is 
perceived that the adversaries of the new Constitution are availing themselves of 
the prevailing prejudice with regard to the practicable sphere of republican 
administration, in order to supply, by imaginary difficulties, the want of those solid 
objections which they endeavor in vain to find. 

The error which limits republican government to a narrow district has been 
unfolded and refuted in preceding papers. I remark here only that it seems to owe 
its rise and prevalence chiefly to the confounding of a republic with a democracy, 
applying to the former reasonings drawn from the nature of the latter. The true 



cu iu uy uiuiil) ao oucl.ii i ici 10 ui u ic iauci u ic iuiuuicih uci i luuiauico uio.iil.icih 

Greece and modern Italy. Under the confusion of names, it has been an easy task 
to transfer to a republic observations applicable to a democracy only; and among 
others, the observation that it can never be established but among a small number 
of people, living within a small compass of territory. 

Such a fallacy may have been the less perceived, as most of the popular 
governments of antiquity were of the democratic species; and even in modern 
Europe, to which we owe the great principle of representation, no example is seen 
of a government wholly popular, and founded, at the same time, wholly on that 
principle. If Europe has the merit of discovering this great mechanical power in 
government, by the simple agency of which the will of the largest political body may 
be concentred, and its force directed to any object which the public good requires, 
America can claim the merit of making the discovery the basis of unmixed and 
extensive republics. It is only to be lamented that any of her citizens should wish to 
deprive her of the additional merit of displaying its full efficacy in the establishment 
of the comprehensive system now under her consideration. 

As the natural limit of a democracy is that distance from the central point which will 
just permit the most remote citizens to assemble as often as their public functions 



icoun lu u ic auiuai un i ici ioiui 10 ui u ic ui nui i. iiic 111 1 ii lo , ao iiacu uy u ic ucaiyui 

peace, are: on the east the Atlantic, on the south the latitude of thirty-one degrees, 
on the west the Mississippi, and on the north an irregular line running in some 
instances beyond the forty-fifth degree, in others falling as low as the forty-second. 
The southern shore of Lake Erie lies below that latitude. Computing the distance 
between the thirty-first and forty-fifth degrees, it amounts to nine hundred and 
seventy-three common miles; computing it from thirty-one to forty-two degrees, to 
seven hundred and sixty-four miles and a half. Taking the mean for the distance, 
the amount will be eight hundred and sixty-eight miles and three -fourths. The mean 
distance from the Atlantic to the Mississippi does not probably exceed seven 
hundred and fifty miles. On a comparison of this extent with that of several 
countries in Europe, the practicability of rendering our system commensurate to it 
appears to be demonstrable. It is not a great deal larger than Germany, where a 
diet representing the whole empire is continually assembled; or than Poland 
before the late dismemberment, where another national diet was the depositary of 
the supreme power. Passing by France and Spain, we find that in Great Britain, 
inferior as it may be in size, the representatives of the northern extremity of the 
island have as far to travel to the national council as will be required of those of the 
most remote parts of the Union. 



uiuuyii il vvuuiu iiul uc uiiiiuuil lu 01 iuvv li icil ii li icy vvcic auunancu LI IC LJCI ICI Cll 

government would be compelled, by the principle of self-preservation, to reinstate 
them in their proper jurisdiction. 

A second observation to be made is that the immediate object of the federal 
Constitution is to secure the union of the thirteen primitive States, which we know 
to be practicable; and to add to them such other States as may arise in their own 
bosoms, or in their neighborhoods, which we cannot doubt to be equally 
practicable. The arrangements that may be necessary for those angles and 
fractions of our territory which lie on our northwestern frontier, must be left to those 
whom further discoveries and experience will render more equal to the task. 

Let it be remarked, in the third place, that the intercourse throughout the Union will 
be facilitated by new improvements. Roads will everywhere be shortened, and 
kept in better order; accommodations for travelers will be multiplied and 
meliorated; an interior navigation on our eastern side will be opened throughout, or 
nearly throughout, the whole extent of the thirteen States. The communication 
between the Western and Atlantic districts, and between different parts of each, 
will be rendered more and more easy by those numerous canals with which the 
beneficence of nature has intersected our country, and which art finds it so little 



iiiiu il iiiuic au lu ouuyyic aiui ic aycuiioi cu i iiivauiiiy enemy, ui even iu auppuu 

alone the whole expense of those precautions which may be dictated by the 
neighborhood of continual danger. If they should derive less benefit, therefore, 
from the Union in some respects than the less distant States, they will derive 
greater benefit from it in other respects, and thus the proper equilibrium will be 
maintained throughout. 

I submit to you, my fellow-citizens, these considerations, in full confidence that the 
good sense which has so often marked your decisions will allow them their due 
weight and effect; and that you will never suffer difficulties, however formidable in 
appearance, or however fashionable the error on which they may be founded, to 
drive you into the gloomy and perilous scene into which the advocates for disunion 
would conduct you. Hearken not to the unnatural voice which tells you that the 
people of America, knit together as they are by so many cords of affection, can no 
longer live together as members of the same family; can no longer continue the 
mutual guardians of their mutual happiness; can no longer be fellow citizens of one 
great, respectable, and flourishing empire. Hearken not to the voice which 
petulantly tells you that the form of government recommended for your adoption is 
a novelty in the political world; that it has never yet had a place in the theories of 
the wildest projectors; that it rashly attempts what it is impossible to accomplish. 



antiquity, for custom, or for names, to overrule the suggestions of their own good 
sense, the knowledge of their own situation, and the lessons of their own 
experience? To this manly spirit, posterity will be indebted for the possession, and 
the world for the example, of the numerous innovations displayed on the American 
theatre, in favor of private rights and public happiness. Had no important step 
been taken by the leaders of the Revolution for which a precedent could not be 
discovered, no government established of which an exact model did not present 
itself, the people of the United States might, at this moment have been numbered 
among the melancholy victims of misguided councils, must at best have been 
laboring under the weight of some of those forms which have crushed the liberties 
of the rest of mankind. Happily for America, happily, we trust, for the whole human 
race, they pursued a new and more noble course. They accomplished a revolution 
which has no parallel in the annals of human society. They reared the fabrics of 
governments which have no model on the face of the globe. They formed the 
design of a great Confederacy, which it is incumbent on their successors to 
improve and perpetuate. If their works betray imperfections, we wonder at the 
fewness of them. If they erred most in the structure of the Union, this was the work 
most difficult to be executed; this is the work which has been new modelled by the 
act of your convention, and it is that act on which you are now to deliberate and to 



For the Independent Journal. Saturday, December 1, 1787 

HAMILTON 

To the People of the State of New York. 

IN THE course of the preceding papers, I have endeavored, my fellow citizens, to 
place before you, in a clear and convincing light, the importance of Union to your 
political safety and happiness. I have unfolded to you a complication of dangers to 
which you would be exposed, should you permit that sacred knot which binds the 
people of America together be severed or dissolved by ambition or by avarice, by 
jealousy or by misrepresentation. In the sequel of the inquiry through which I 
propose to accompany you, the truths intended to be inculcated will receive further 
confirmation from facts and arguments hitherto unnoticed. If the road over which 
you will still have to pass should in some places appear to you tedious or irksome, 
you will recollect that you are in quest of information on a subject the most 
momentous which can engage the attention of a free people, that the field through 



LI IC IIICIIUO Ul LI IC I ICVV V^UI DULULIUI I. IL I I IUOL III LI ULI I UC aL/M IUVVICULJCU LI ICLL, I IUVVCVCI 

these may differ in other respects, they in general appear to harmonize in this 
sentiment, at least, that there are material imperfections in our national system, 
and that something is necessary to be done to rescue us from impending anarchy. 
The facts that support this opinion are no longer objects of speculation. They have 
forced themselves upon the sensibility of the people at large, and have at length 
extorted from those, whose mistaken policy has had the principal share in 
precipitating the extremity at which we are arrived, a reluctant confession of the 
reality of those defects in the scheme of our federal government, which have been 
long pointed out and regretted by the intelligent friends of the Union. 

We may indeed with propriety be said to have reached almost the last stage of 
national humiliation. There is scarcely anything that can wound the pride or 
degrade the character of an independent nation which we do not experience. Are 
there engagements to the performance of which we are held by every tie 
respectable among men? These are the subjects of constant and unblushing 
violation. Do we owe debts to foreigners and to our own citizens contracted in a 
time of imminent peril for the preservation of our political existence? These remain 
without any proper or satisfactory provision for their discharge. Have we valuable 
territories and important posts in the possession of a foreign power which, by 



government even forbids them to treat with us. Our ambassadors abroad are the 
mere pageants of mimic sovereignty. Is a violent and unnatural decrease in the 
value of land a symptom of national distress? The price of improved land in most 
parts of the country is much lower than can be accounted for by the quantity of 
waste land at market, and can only be fully explained by that want of private and 
public confidence, which are so alarmingly prevalent among all ranks, and which 
have a direct tendency to depreciate property of every kind. Is private credit the 
friend and patron of industry? That most useful kind which relates to borrowing and 
lending is reduced within the narrowest limits, and this still more from an opinion of 
insecurity than from the scarcity of money. To shorten an enumeration of 
particulars which can afford neither pleasure nor instruction, it may in general be 
demanded, what indication is there of national disorder, poverty, and 
insignificance that could befall a community so peculiarly blessed with natural 
advantages as we are, which does not form a part of the dark catalogue of our 
public misfortunes? 

This is the melancholy situation to which we have been brought by those very 
maxims and councils which would now deter us from adopting the proposed 
Constitution; and which, not content with having conducted us to the brink of a 



ouuucroo. mimic U icy auiiiii uiai u ic yuvci 1 11 1 ici il ui u ic vjiiucu oiaica 10 ucdiuuic ui 

energy, they contend against conferring upon it those powers which are requisite 
to supply that energy. They seem still to aim at things repugnant and irreconcilable; 
at an augmentation of federal authority, without a diminution of State authority; at 
sovereignty in the Union, and complete independence in the members. They still, 
in fine, seem to cherish with blind devotion the political monster of an imperium in 
imperio. This renders a full display of the principal defects of the Confederation 
necessary, in order to show that the evils we experience do not proceed from 
minute or partial imperfections, but from fundamental errors in the structure of the 
building, which cannot be amended otherwise than by an alteration in the first 
principles and main pillars of the fabric. 

The great and radical vice in the construction of the existing Confederation is in 
the principle of LEGISLATION for STATES or GOVERNMENTS, in their 
CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from 
the INDIVIDUALS of which they consist. Though this principle does not run through 
all the powers delegated to the Union, yet it pervades and governs those on which 
the efficacy of the rest depends. Except as to the rule of appointment, the United 
States has an indefinite discretion to make requisitions for men and money; but 
they have no authority to raise either, by regulations extending to the individual 



ii iiiuci iuc ui u ic 1 1 layiouauy. 

There is nothing absurd or impracticable in the idea of a league or alliance 
between independent nations for certain defined purposes precisely stated in a 
treaty regulating all the details of time, place, circumstance, and quantity; leaving 
nothing to future discretion; and depending for its execution on the good faith of 
the parties. Compacts of this kind exist among all civilized nations, subject to the 
usual vicissitudes of peace and war, of observance and non-observance, as the 
interests or passions of the contracting powers dictate. In the early part of the 
present century there was an epidemical rage in Europe for this species of 
compacts, from which the politicians of the times fondly hoped for benefits which 
were never realized. With a view to establishing the equilibrium of power and the 
peace of that part of the world, all the resources of negotiation were exhausted, 
and triple and quadruple alliances were formed; but they were scarcely formed 
before they were broken, giving an instructive but afflicting lesson to mankind, how 
little dependence is to be placed on treaties which have no other sanction than the 
obligations of good faith, and which oppose general considerations of peace and 
justice to the impulse of any immediate interest or passion. 

If the particular States in this country are disposed to stand in a similar relation to 



^UpCI II ILCI IUII ILJ pUVVCI, UIIUCI LI IC UIICl/UUII ui a. UUI I ll I IUI I UUUI IUII, VVC I I iuoi icouivc 

to incorporate into our plan those ingredients which may be considered as forming 
the characteristic difference between a league and a government; we must extend 
the authority of the Union to the persons of the citizens.A — the only proper objects 
of government. 

Government implies the power of making laws. It is essential to the idea of a law, 
that it be attended with a sanction; or, in other words, a penalty or punishment for 
disobedience. If there be no penalty annexed to disobedience, the resolutions or 
commands which pretend to be laws will, in fact, amount to nothing more than 
advice or recommendation. This penalty, whatever it may be, can only be inflicted 
in two ways: by the agency of the courts and ministers of justice, or by military 
force; by the COERCION of the magistracy, or by the COERCION of arms. The 
first kind can evidently apply only to men; the last kind must of necessity, be 
employed against bodies politic, or communities, or States. It is evident that there 
is no process of a court by which the observance of the laws can, in the last resort, 
be enforced. Sentences may be denounced against them for violations of their 
duty; but these sentences can only be carried into execution by the sword. In an 
association where the general authority is confined to the collective bodies of the 
communities, that compose it, every breach of the laws must involve a state of war; 



an lyiiuiciii^c ui li ic u uc opiniyo uy vviiil.ii i iui i icu i uui iuuul io auiuaicu, a\ iu ucncu 

the original inducements to the establishment of civil power. Why has government 
been instituted at all? Because the passions of men will not conform to the 
dictates of reason and justice, without constraint. Has it been found that bodies of 
men act with more rectitude or greater disinterestedness than individuals? The 
contrary of this has been inferred by all accurate observers of the conduct of 
mankind; and the inference is founded upon obvious reasons. Regard to 
reputation has a less active influence, when the infamy of a bad action is to be 
divided among a number than when it is to fall singly upon one. A spirit of faction, 
which is apt to mingle its poison in the deliberations of all bodies of men, will often 
hurry the persons of whom they are composed into improprieties and excesses, 
for which they would blush in a private capacity. 

In addition to all this, there is, in the nature of sovereign power, an impatience of 
control, that disposes those who are invested with the exercise of it, to look with an 
evil eye upon all external attempts to restrain or direct its operations. From this 
spirit it happens, that in every political association which is formed upon the 
principle of uniting in a common interest a number of lesser sovereignties, there 
will be found a kind of eccentric tendency in the subordinate or inferior orbs, by the 
operation of which there will be a perpetual effort in each to fly off from the 



ucniy cacouicu ai an. 1 1 ic iuicio ui u ic ico|jcuu vc 1 1 ici i iucio, vvi icu ici u icy i lave a 

constitutional right to do it or not, will undertake to judge of the propriety of the 
measures themselves. They will consider the conformity of the thing proposed or 
required to their immediate interests or aims; the momentary conveniences or 
inconveniences that would attend its adoption. All this will be done; and in a spirit 
of interested and suspicious scrutiny, without that knowledge of national 
circumstances and reasons of state, which is essential to a right judgment, and 
with that strong predilection in favor of local objects, which can hardly fail to 
mislead the decision. The same process must be repeated in every member of 
which the body is constituted; and the execution of the plans, framed by the 
councils of the whole, will always fluctuate on the discretion of the ill-informed and 
prejudiced opinion of every part. Those who have been conversant in the 
proceedings of popular assemblies; who have seen how difficult it often is, where 
there is no exterior pressure of circumstances, to bring them to harmonious 
resolutions on important points, will readily conceive how impossible it must be to 
induce a number of such assemblies, deliberating at a distance from each other, 
at different times, and under different impressions, long to co-operate in the same 
views and pursuits. 

In our case, the concurrence of thirteen distinct sovereign wills is requisite, under 



pretext of example and the temptation of interest to the complying, or to the least 
delinquent States. Why should we do more in proportion than those who are 
embarked with us in the same political voyage? Why should we consent to bear 
more than our proper share of the common burden? These were suggestions 
which human selfishness could not withstand, and which even speculative men, 
who looked forward to remote consequences, could not, without hesitation, 
combat. Each State, yielding to the persuasive voice of immediate interest or 
convenience, has successively withdrawn its support, till the frail and tottering 
edifice seems ready to fall upon our heads, and to crush us beneath its ruins. 

PUBLIUS 

1. "I mean for the Union." 



THE tendency of the principle of legislation for States, or communities, in their 
political capacities, as it has been exemplified by the experiment we have made 
of it, is equally attested by the events which have befallen all other governments of 
the confederate kind, of which we have any account, in exact proportion to its 
prevalence in those systems. The confirmations of this fact will be worthy of a 
distinct and particular examination. I shall content myself with barely observing 
here, that of all the confederacies of antiquity, which history has handed down to 
us, the Lycian and Achaean leagues, as far as there remain vestiges of them, 
appear to have been most free from the fetters of that mistaken principle, and 
were accordingly those which have best deserved, and have most liberally 
received, the applauding suffrages of political writers. 

This exceptionable principle may, as truly as emphatically, be styled the parent of 
anarchy: It has been seen that delinquencies in the members of the Union are its 
natural and necessary offspring; and that whenever they happen, the only 
constitutional remedy is force, and the immediate effect of the use of it, civil war. 

It remains to inquire how far so odious an engine of government, in its application 
to us, would even be capable of answering its end. If there should not be a large 



to the common liberty could easily be contrived; plausible excuses for the 
deficiencies of the party could, without difficulty, be invented to alarm the 
apprehensions, inflame the passions, and conciliate the good-will, even of those 
States which were not chargeable with any violation or omission of duty. This 
would be the more likely to take place, as the delinquencies of the larger members 
might be expected sometimes to proceed from an ambitious premeditation in 
their rulers, with a view to getting rid of all external control upon their designs of 
personal aggrandizement; the better to effect which it is presumable they would 
tamper beforehand with leading individuals in the adjacent States. If associates 
could not be found at home, recourse would be had to the aid of foreign powers, 
who would seldom be disinclined to encouraging the dissensions of a 
Confederacy, from the firm union of which they had so much to fear. When the 
sword is once drawn, the passions of men observe no bounds of moderation. The 
suggestions of wounded pride, the instigations of irritated resentment, would be 
apt to carry the States against which the arms of the Union were exerted, to any 
extremes necessary to avenge the affront or to avoid the disgrace of submission. 
The first war of this kind would probably terminate in a dissolution of the Union. 

This may be considered as the violent death of the Confederacy. Its more natural 



it had proceeded from disinclination or inability. The pretense of the latter would 
always be at hand. And the case must be very flagrant in which its fallacy could be 
detected with sufficient certainty to justify the harsh expedient of compulsion. It is 
easy to see that this problem alone, as often as it should occur, would open a wide 
field for the exercise of factious views, of partiality, and of oppression, in the 
majority that happened to prevail in the national council. 

It seems to require no pains to prove that the States ought not to prefer a national 
Constitution which could only be kept in motion by the instrumentality of a large 
army continually on foot to execute the ordinary requisitions or decrees of the 
government. And yet this is the plain alternative involved by those who wish to deny 
it the power of extending its operations to individuals. Such a scheme, if 
practicable at all, would instantly degenerate into a military despotism; but it will be 
found in every light impracticable. The resources of the Union would not be equal 
to the maintenance of an army considerable enough to confine the larger States 
within the limits of their duty; nor would the means ever be furnished of forming 
such an army in the first instance. Whoever considers the populousness and 
strength of several of these States singly at the present juncture, and looks forward 
to what they will become, even at the distance of half a century, will at once 



ui uiuuuy vvaio, 111 vviiiuii ui ic 1 1a.11 ui u ic tuincuciauy i iao uiopiaycu no uai n icio 

against the other half. 

The result of these observations to an intelligent mind must be clearly this, that if it 
be possible at any rate to construct a federal government capable of regulating the 
common concerns and preserving the general tranquillity, it must be founded, as to 
the objects committed to its care, upon the reverse of the principle contended for 
by the opponents of the proposed Constitution. It must carry its agency to the 
persons of the citizens. It must stand in need of no intermediate legislations; but 
must itself be empowered to employ the arm of the ordinary magistrate to execute 
its own resolutions. The majesty of the national authority must be manifested 
through the medium of the courts of justice. The government of the Union, like that 
of each State, must be able to address itself immediately to the hopes and fears 
of individuals; and to attract to its support those passions which have the strongest 
influence upon the human heart. It must, in short, possess all the means, and have 
aright to resort to all the methods, of executing the powers with which it is intrusted, 
that are possessed and exercised by the government of the particular States. 

To this reasoning it may perhaps be objected, that if any State should be 
disaffected to the authority of the Union, it could at any time obstruct the execution 



ui aui i ic lci i ipuiaiy uui ivci iici ioc, caci i iljuui i, ui auvai uayc. 

But if the execution of the laws of the national government should not require the 
intervention of the State legislatures, if they were to pass into immediate operation 
upon the citizens themselves, the particular governments could not interrupt their 
progress without an open and violent exertion of an unconstitutional power. No 
omissions nor evasions would answer the end. They would be obliged to act, and 
in such a manner as would leave no doubt that they had encroached on the 
national rights. An experiment of this nature would always be hazardous in the face 
of a constitution in any degree competent to its own defense, and of a people 
enlightened enough to distinguish between a legal exercise and an illegal 
usurpation of authority. The success of it would require not merely a factious 
majority in the legislature, but the concurrence of the courts of justice and of the 
body of the people. If the judges were not embarked in a cons pi racy with the 
legislature, they would pronounce the resolutions of such a majority to be contrary 
to the supreme law of the land, unconstitutional, and void. If the people were not 
tainted with the spirit of their State representatives, they, as the natural guardians 
of the Constitution, would throw their weight into the national scale and give it a 
decided preponderancy in the contest. Attempts of this kind would not often be 
made with levity or rashness, because they could seldom be made without danger 



uuiiiiiicuiu iiiuic calciioivc icouuiuco iui u ic oujjlji caaiui i ui uioiui ucli II-C3 U I u icll 

kind than would be in the power of any single member. And as to those mortal 
feuds which, in certain conjunctures, spread a conflagration through a whole 
nation, or through a very large proportion of it, proceeding either from weighty 
causes of discontent given by the government or from the contagion of some 
violent popular paroxysm, they do not fall within any ordinary rules of calculation. 
When they happen, they commonly amount to revolutions and dismemberments of 
empire. No form of government can always either avoid or control them. It is in vain 
to hope to guard against events too mighty for human foresight or precaution, and 
it would be idle to object to a government because it could not perform 
impossibilities. 

PUBLIUS 



FEDERALIST No. 17. The Same Subject 



answered, in my last address, may perhaps be likewise urged against the 
principle of legislation for the individual citizens of America. It may be said that it 
would tend to render the government of the Union too powerful, and to enable it to 
absorb those residuary authorities, which it might be judged proper to leave with 
the States for local purposes. Allowing the utmost latitude to the love of power 
which any reasonable man can require, I confess I am at a loss to discover what 
temptation the persons intrusted with the administration of the general government 
could ever feel to divest the States of the authorities of that description. The 
regulation of the mere domestic police of a State appears to me to hold out 
slender allurements to ambition. Commerce, finance, negotiation, and war seem 
to comprehend all the objects which have charms for minds governed by that 
passion; and all the powers necessary to those objects ought, in the first instance, 
to be lodged in the national depository. The administration of private justice 
between the citizens of the same State, the supervision of agriculture and of other 
concerns of a similar nature, all those things, in short, which are proper to be 
provided for by local legislation, can never be desirable cares of a general 
jurisdiction. It is therefore improbable that there should exist a disposition in the 
federal councils to usurp the powers with which they are connected; because the 



yiccuci ucyicc ui n iiiuci iuc vviiil.ii u ic oicuc yuvci i n i ici no n u icy aui i in iioici liicii 

affairs with uprightness and prudence, will generally possess over the people; a 
circumstance which at the same time teaches us that there is an inherent and 
intrinsic weakness in all federal constitutions; and that too much pains cannot be 
taken in their organization, to give them all the force which is compatible with the 
principles of liberty. 

The superiority of influence in favor of the particular governments would result 
partly from the diffusive construction of the national government, but chiefly from 
the nature of the objects to which the attention of the State administrations would 
be directed. 

It is a known fact in human nature, that its affections are commonly weak in 
proportion to the distance or diffusiveness of the object. Upon the same principle 
that a man is more attached to his family than to his neighborhood, to his 
neighborhood than to the community at large, the people of each State would be 
apt to feel a stronger bias towards their local governments than towards the 
government of the Union; unless the force of that principle should be destroyed by 
a much better administration of the latter. 



others, is the most powerful, most universal, and most attractive source of popular 
obedience and attachment. It is that which, being the immediate and visible 
guardian of life and property, having its benefits and its terrors in constant activity 
before the public eye, regulating all those personal interests and familiar concerns 
to which the sensibility of individuals is more immediately awake, contributes, 
more than any other circumstance, to impressing upon the minds of the people, 
affection, esteem, and reverence towards the government. This great cement of 
society, which will diffuse itself almost wholly through the channels of the particular 
governments, independent of all other causes of influence, would insure them so 
decided an empire over their respective citizens as to render them at all times a 
complete counterpoise, and, not unfrequently, dangerous rivals to the power of the 
Union. 

The operations of the national government, on the other hand, falling less 
immediately under the observation of the mass of the citizens, the benefits derived 
from it will chiefly be perceived and attended to by speculative men. Relating to 
more general interests, they will be less apt to come home to the feelings of the 
people; and, in proportion, less likely to inspire an habitual sense of obligation, 
and an active sentiment of attachment. 



his particular demesnes. The consequences of this situation were a continual 
opposition to authority of the sovereign, and frequent wars between the great 
barons or chief feudatories themselves. The power of the head of the nation was 
commonly too weak, either to preserve the public peace, or to protect the people 
against the oppressions of their immediate lords. This period of European affairs 
is emphatically styled by historians, the times of feudal anarchy. 

When the sovereign happened to be a man of vigorous and warlike temper and of 
superior abilities, he would acquire a personal weight and influence, which 
answered, for the time, the purpose of a more regular authority. But in general, the 
power of the barons triumphed over that of the prince; and in many instances his 
dominion was entirely thrown off, and the great fiefs were erected into independent 
principalities or States. In those instances in which the monarch finally prevailed 
over his vassals, his success was chiefly owing to the tyranny of those vassals 
over their dependents. The barons, or nobles, equally the enemies of the 
sovereign and the oppressors of the common people, were dreaded and detested 
by both; till mutual danger and mutual interest effected a union between them fatal 
to the power of the aristocracy. Had the nobles, by a conduct of clemency and 
justice, preserved the fidelity and devotion of their retainers and followers, the 



r\ii lyuui 1 1. 

The separate governments in a confederacy may aptly be compared with the 
feudal baronies; with this advantage in their favor, that from the reasons already 
explained, they will generally possess the confidence and good-will of the people, 
and with so important a support, will be able effectually to oppose all 
encroachments of the national government. It will be well if they are not able to 
counteract its legitimate and necessary authority. The points of similitude consist 
in the rivalship of power, applicable to both, and in the CONCENTRATION of large 
portions of the strength of the community into particular DEPOSITORIES, in one 
case at the disposal of individuals, in the other case at the disposal of political 
bodies. 

A concise review of the events that have attended confederate governments will 
further illustrate this important doctrine; an inattention to which has been the great 
source of our political mistakes, and has given our jealousy a direction to the 
wrong side. This review shall form the subject of some ensuing papers. 

PUBLIUS 



MADISON, with HAMILTON 

To the People of the State of New York: 

AMONG the confederacies of antiquity, the most considerable was that of the 
Grecian republics, associated under the Amphictyonic council. From the best 
accounts transmitted of this celebrated institution, it bore a very instructive analogy 
to the present Confederation of the American States. 

The members retained the character of independent and sovereign states, and 
had equal votes in the federal council. This council had a general authority to 
propose and resolve whatever it judged necessary for the common welfare of 
Greece; to declare and carry on war; to decide, in the last resort, all controversies 
between the members; to fine the aggressing party; to employ the whole force of 
the confederacy against the disobedient; to admit new members. The 
Amphictyons were the guardians of religion, and of the immense riches belonging 
to the temple of Delphos, where they had the right of jurisdiction in controversies 
between the inhabitants and those who came to consult the oracle. As a further 
provision for the efficacy of the federal powers, they took an oath mutually to 



those of the present Congress, were administered by deputies appointed wholly 
by the cities in their political capacities; and exercised over them in the same 
capacities. Hence the weakness, the disorders, and finally the destruction of the 
confederacy. The more powerful members, instead of being kept in awe and 
subordination, tyrannized successively over all the rest. Athens, as we learn from 
Demosthenes, was the arbiter of Greece seventy-three years. The 
Lacedaemonians next governed it twenty-nine years; at a subsequent period, after 
the battle of Leuctra, the Thebans had their turn of domination. 

It happened but too often, according to Plutarch, that the deputies of the strongest 
cities awed and corrupted those of the weaker; and that judgment went in favor of 
the most powerful party. 

Even in the midst of defensive and dangerous wars with Persia and Macedon, the 
members never acted in concert, and were, more or fewer of them, eternally the 
dupes or the hirelings of the common enemy. The intervals of foreign war were 
filled up by domestic vicissitudes convulsions, and carnage. 

After the conclusion of the war with Xerxes, it appears that the Lacedaemonians 
required that a number of the cities should be turned out of the confederacy for the 



uiiiuii, cu iu vvuuiu nave avancu u ici i iocivco ui u ic pcci^c vviiil.ii iuiiuvvcu uicii 

success against the Persian arms, to establish such a reformation. Instead of this 
obvious policy, Athens and Sparta, inflated with the victories and the glory they had 
acquired, became first rivals and then enemies; and did each other infinitely more 
mischief than they had suffered from Xerxes. Their mutual jealousies, fears, 
hatreds, and injuries ended in the celebrated Peloponnesian war; which itself 
ended in the ruin and slavery of the Athenians who had begun it. 

As a weak government, when not at war, is ever agitated by internal dissentions, 
so these never fail to bring on fresh calamities from abroad. The Phocians having 
ploughed up some consecrated ground belonging to the temple of Apollo, the 
Amphictyonic council, according to the superstition of the age, imposed a fine on 
the sacrilegious offenders. The Phocians, being abetted by Athens and Sparta, 
refused to submit to the decree. The Thebans, with others of the cities, undertook 
to maintain the authority of the Amphictyons, and to avenge the violated god. The 
latter, being the weaker party, invited the assistance of Philip of Macedon, who 
had secretly fostered the contest. Philip gladly seized the opportunity of executing 
the designs he had long planned against the liberties of Greece. By his intrigues 
and bribes he won over to his interests the popular leaders of several cities; by 
their influence and votes, gained admission into the Amphictyonic council; and by 



preceding instance. It will accordingly appear, that though not exempt from a 
similar catastrophe, it by no means equally deserved it. 

The cities composing this league retained their municipal jurisdiction, appointed 
their own officers, and enjoyed a perfect equality. The senate, in which they we re 
represented, had the sole and exclusive right of peace and war; of sending and 
receiving ambassadors; of entering into treaties and alliances; of appointing a 
chief magistrate or praetor, as he was called, who commanded their armies, and 
who, with the advice and consent of ten of the senators, not only administered the 
government in the recess of the senate, but had a great share in its deliberations, 
when assembled. According to the primitive constitution, there were two praetors 
associated in the administration; but on trial a single one was preferred. 

It appears that the cities had all the same laws and customs, the same weights 
and measures, and the same money. But how far this effect proceeded from the 
authority of the federal council is left in uncertainty. It is said only that the cities 
were in a manner compelled to receive the same laws and usages. When 
Lacedaemon was brought into the league by Philopoemen, it was attended with 
an abolition of the institutions and laws of Lycurgus, and an adoption of those of 
the Achaeans. The Amphictyonic confederacy, of which she had been a member, 



violence and sedition in the people, than were to be found in any of the cities 
exercising SINGLY all the prerogatives of sovereignty. The Abbe Mably, in his 
observations on Greece, says that the popular government, which was so 
tempestuous elsewhere, caused no disorders in the members of the Achaean 
republic, BECAUSE IT WAS THERE TEMPERED BY THE GENERAL 
AUTHORITY AND LAWS OF THE CONFEDERACY. 

We are not to conclude too hastily, however, that faction did not, in a certain 
degree, agitate the particular cities; much less that a due subordination and 
harmony reigned in the general system. The contrary is sufficiently displayed in the 
vicissitudes and fate of the republic. 

Whilst the Amphictyonic confederacy remained, that of the Achaeans, which 
comprehended the less important cities only, made little figure on the theatre of 
Greece. When the former became a victim to Macedon, the latter was spared by 
the policy of Philip and Alexander. Under the successors of these princes, 
however, a different policy prevailed. The arts of division were practiced among 
the Achaeans. Each city was seduced into a separate interest; the union was 
dissolved. Some of the cities fell under the tyranny of Macedonian garrisons; 



an unprovoked attack on his neighbors, the Achaeans, and who, as an enemy to 
Macedon, had interest enough with the Egyptian and Syrian princes to effect a 
breach of their engagements with the league. 

The Achaeans were now reduced to the dilemma of submitting to Cleomenes, or 
of supplicating the aid of Macedon, its former oppressor. The latter expedient was 
adopted. The contests of the Greeks always afforded a pleasing opportunity to 
that powerful neighbor of intermeddling in their affairs. A Macedonian army quickly 
appeared. Cleomenes was vanquished. The Achaeans soon experienced, as 
often happens, that a victorious and powerful ally is but another name for a master. 
All that their most abject compliances could obtain from him was a toleration of the 
exercise of their laws. Philip, who was now on the throne of Macedon, soon 
provoked by his tyrannies, fresh combinations among the Greeks. The Achaeans, 
though weakened by internal dissensions and by the revolt of Messene, one of its 
members, being joined by the AEtolians and Athenians, erected the standard of 
opposition. Finding themselves, though thus supported, unequal to the 
undertaking, they once more had recourse to the dangerous expedient of 
introducing the succor of foreign arms. The Romans, to whom the invitation was 
made, eagerly embraced it. Philip was conquered; Macedon subdued. A new 



groaning at this hour. 

I have thought it not superfluous to give the outlines of this important portion of 
history; both because it teaches more than one lesson, and because, as a 
supplement to the outlines of the Achaean constitution, it emphatically illustrates 
the tendency of federal bodies rather to anarchy among the members, than to 
tyranny in the head. 

PUBLIUS 

1. This was but another name more specious for the independence of the 
members on the federal head. 



FEDERALIST No. 19. The Same Subject 



institutions, founded on a similar principle, which merit particular consideration. 
The first which presents itself is the Germanic body. 

In the early ages of Christianity, Germany was occupied by seven distinct nations, 
who had no common chief. The Franks, one of the number, having conquered the 
Gauls, established the kingdom which has taken its name from them. In the ninth 
century Charlemagne, its warlike monarch, carried his victorious arms in every 
direction; and Germany became a part of his vast dominions. On the 
dismemberment, which took place under his sons, this part was erected into a 
separate and independent empire. Charlemagne and his immediate descendants 
possessed the reality, as well as the ensigns and dignity of imperial power. But the 
principal vassals, whose fiefs had become hereditary, and who composed the 
national diets which Charlemagne had not abolished, gradually threw off the yoke 
and advanced to sovereign jurisdiction and independence. The force of imperial 
sovereignty was insufficient to restrain such powerful dependants; or to preserve 
the unity and tranquillity of the empire. The most furious private wars, 
accompanied with every species of calamity, were carried on between the 
different princes and states. The imperial authority, unable to maintain the public 
order, declined by degrees till it was almost extinct in the anarchy, which agitated 



ci i ipnc, ui vvi iiui i i lap pci I CU I IUI ILj ILO IIICIIIUCIO. 

The diet possesses the general power of legislating for the empire; of making war 
and peace; contracting alliances; assessing quotas of troops and money; 
constructing fortresses; regulating coin; admitting new members; and subjecting 
disobedient members to the ban of the empire, by which the party is degraded 
from his sovereign rights and his possessions forfeited. The members of the 
confederacy are expressly restricted from entering into compacts prejudicial to the 
empire; from imposing tolls and duties on their mutual intercourse, without the 
consent of the emperor and diet; from altering the value of money; from doing 
injustice to one another; or from affording assistance or retreat to disturbers of the 
public peace. And the ban is denounced against such as shall violate any of these 
restrictions. The members of the diet, as such, are subject in all cases to be 
judged by the emperor and diet, and in their private capacities by the aulic council 
and imperial chamber. 

The prerogatives of the emperor are numerous. The most important of them are: 
his exclusive right to make propositions to the diet; to negative its resolutions; to 
name ambassadors; to confer dignities and titles; to fill vacant electorates; to 
found universities; to grant privileges not injurious to the states of the empire; to 



u icll li ic lavvo aic auuicaacu lu auvciciyi 10, iciiucio uic cmpiic a ncivcicao uuuy, 

incapable of regulating its own members, insecure against external dangers, and 
agitated with unceasing fermentations in its own bowels. 

The history of Germany is a history of wars between the emperor and the princes 
and states; of wars among the princes and states themselves; of the 
licentiousness of the strong, and the oppression of the weak; of foreign intrusions, 
and foreign intrigues; of requisitions of men and money disregarded, or partially 
complied with; of attempts to enforce them, altogether abortive, or attended with 
slaughter and desolation, involving the innocent with the guilty; of general 
imbecility, confusion, and misery. 

In the sixteenth century, the emperor, with one part of the empire on his side, was 
seen engaged against the other princes and states. In one of the conflicts, the 
emperor himself was put to flight, and very near being made prisoner by the 
elector of Saxony. The late king of Prussia was more than once pitted against his 
imperial sovereign; and commonly proved an overmatch for him. Controversies 
and wars among the members themselves have been so common, that the 
German annals are crowded with the bloody pages which describe them. Previous 
to the peace of Westphalia, Germany was desolated by a war of thirty years, in 



The small body of national troops, which has been judged necessary in time of 
peace, is defectively kept up, badly paid, infected with local prejudices, and 
supported by irregular and disproportionate contributions to the treasury. 

The impossibility of maintaining order and dispensing justice among these 
sovereign subjects, produced the experiment of dividing the empire into nine or 
ten circles or districts; of giving them an interior organization, and of charging them 
with the military execution of the laws against delinquent and contumacious 
members. This experiment has only served to demonstrate more fully the radical 
vice of the constitution. Each circle is the miniature picture of the deformities of 
this political monster. They either fail to execute their commissions, or they do it 
with all the devastation and carnage of civil war. Sometimes whole circles are 
defaulters; and then they increase the mischief which they were instituted to 
remedy. 

We may form some judgment of this scheme of military coercion from a sample 
given byThuanus. In Donawerth, a free and imperial city of the circle of Suabia, the 
Abbe de St. Croix enjoyed certain immunities which had been reserved to him. In 
the exercise of these, on some public occasions, outrages were committed on him 



1 1 ici i iucio, vvi iu aic ui ivviini ly iu CApuac u ici i iocivco lu li ic i i iciuy ui luiciyi i jjuvvctio, 

the weakness of most of the principal members, compared with the formidable 
powers all around them; the vast weight and influence which the emperor derives 
from his separate and hereditary dominions; and the interest he feels in preserving 
a system with which his family pride is connected, and which constitutes him the 
first prince in Europe;A — these causes support a feeble and precarious Union; 
whilst the repellant quality, incident to the nature of sovereignty, and which time 
continually strengthens, prevents any reform whatever, founded on a proper 
consolidation. Nor is it to be imagined, if this obstacle could be surmounted, that 
the neighboring powers would suffer a revolution to take place which would give to 
the empire the force and preeminence to which it is entitled. Foreign nations have 
long considered themselves as interested in the changes made by events in this 
constitution; and have, on various occasions, betrayed their policy of perpetuating 
its anarchy and weakness. 

If more direct examples were wanting, Poland, as a government over local 
sovereigns, might not improperly be taken notice of. Nor could any proof more 
striking be given of the calamities flowing from such institutions. Equally unfit for 
self-government and self-defense, it has long been at the mercy of its powerful 
neighbors; who have lately had the mercy to disburden it of one third of its people 



dependent possessions; by the mutual aid they stand in need of, for suppressing 
insurrections and rebellions, an aid expressly stipulated and often required and 
afforded; and by the necessity of some regular and permanent provision for 
accommodating disputes among the cantons. The provision is, that the parties at 
variance shall each choose four judges out of the neutral cantons, who, in case of 
disagreement, choose an umpire. This tribunal, under an oath of impartiality, 
pronounces definitive sentence, which all the cantons are bound to enforce. The 
competency of this regulation may be estimated by a clause in their treaty of 1683, 
with Victor Amadeus of Savoy; in which he obliges himself to interpose as 
mediator in disputes between the cantons, and to employ force, if necessary, 
against the contumacious party. 

So far as the peculiarity of their case will admit of comparison with that of the 
United States, it serves to confirm the principle intended to be established. 
Whatever efficacy the union may have had in ordinary cases, it appears that the 
moment a cause of difference sprang up, capable of trying its strength, it failed. 
The controversies on the subject of religion, which in three instances have kindled 
violent and bloody contests, may be said, in fact, to have severed the league. The 
Protestant and Catholic cantons have since had their separate diets, where all the 



was to indemnify himself for the expense of the expedition. 



FEDERALIST No. 20. The Same Subject 

Continued (The Insufficiency of the Present 

Confederation to Preserve the Union) 

From the New York Packet. Tuesday, December 11, 1787. 

MADISON, with HAMILTON 

To the People of the State of New York: 

THE United Netherlands are a confederacy of republics, or rather of aristocracies 
of a very remarkable texture, yet confirming all the lessons derived from those 



and peace; to raise armies and equip fleets; to ascertain quotas and demand 
contributions. In all these cases, however, unanimity and the sanction of their 
constituents are requisite. They have authority to appoint and receive 
ambassadors; to execute treaties and alliances already formed; to provide for the 
collection of duties on imports and exports; to regulate the mint, with a saving to 
the provincial rights; to govern as sovereigns the dependent territories. The 
provinces are restrained, unless with the general consent, from entering into 
foreign treaties; from establishing imposts injurious to others, or charging their 
neighbors with higher duties than their own subjects. A council of state, a chamber 
of accounts, with five colleges of admiralty, aid and fortify the federal 
administration. 

The executive magistrate of the union is the stadtholder, who is now an hereditary 
prince. His principal weight and influence in the republic are derived from this 
independent title; from his great patrimonial estates; from his family connections 
with some of the chief potentates of Europe; and, more than all, perhaps, from his 
being stadtholder in the several provinces, as well as for the union; in which 
provincial quality he has the appointment of town magistrates under certain 
regulations, executes provincial decrees, presides when he pleases in the 



In his marine capacity he is admiral-general, and superintends and directs every 
thing relative to naval forces and other naval affairs; presides in the admiralties in 
person or by proxy; appoints lieutenant-admirals and other officers; and 
establishes councils of war, whose sentences are not executed till he approves 
them. 

His revenue, exclusive of his private income, amounts to three hundred thousand 
florins. The standing army which he commands consists of about forty thousand 
men. 

Such is the nature of the celebrated Belgic confederacy, as delineated on 
parchment. What are the characters which practice has stamped upon it? 
Imbecility in the government; discord among the provinces; foreign influence and 
indignities; a precarious existence in peace, and peculiar calamities from war. 

It was long ago remarked by Grotius, that nothing but the hatred of his countrymen 
to the house of Austria kept them from being ruined by the vices of their 
constitution. 

The union of Utrecht, says another respectable writer, reposes an authority in the 



influence of the province of Holland enable her to effect both these purposes. 

It has more than once happened, that the deficiencies had to be ultimately 
collected at the point of the bayonet; a thing practicable, though dreadful, in a 
confederacy where one of the members exceeds in force all the rest, and where 
several of them are too small to meditate resistance; but utterly impracticable in 
one composed of members, several of which are equal to each other in strength 
and resources, and equal singly to a vigorous and persevering defense. 

Foreign ministers, says Sir William Temple, who was himself a foreign minister, 
elude matters taken ad referendum, by tampering with the provinces and cities. In 
1726, the treaty of Hanover was delayed by these means a whole year. Instances 
of a like nature are numerous and notorious. 

In critical emergencies, the States-General are often compelled to overleap their 
constitutional bounds. In 1688, they concluded a treaty of themselves at the risk of 
their heads. The treaty of Westphalia, in 1648, by which their independence was 
formerly and finally recognized, was concluded without the consent of Zealand. 
Even as recently as the last treaty of peace with Great Britain, the constitutional 
principle of unanimity was departed from. A weak constitution must necessarily 



ii li ic |jiuviiiuco i iau iiul a ^pmiy vviumi u ici i iocivco, uafjauic ui y ui^i\ci m ly uicii 

tardiness, and compelling them to the same way of thinking. This spring is the 
stadtholder." It is remarked by Sir William Temple, "that in the intermissions of the 
stadtholdership, Holland, by her riches and her authority, which drew the others 
into a sort of dependence, supplied the place." 

These are not the only circumstances which have controlled the tendency to 
anarchy and dissolution. The surrounding powers impose an absolute necessity of 
union to a certain degree, at the same time that they nourish by their intrigues the 
constitutional vices which keep the republic in some degree always at their mercy. 

The true patriots have long bewailed the fatal tendency of these vices, and have 
made no less than four regular experiments by EXTRAORDINARY ASSEMBLIES, 
convened for the special purpose, to apply a remedy. As many times has their 
laudable zeal found it impossible to UNITE THE PUBLIC COUNCILS in reforming 
the known, the acknowledged, the fatal evils of the existing constitution. Let us 
pause, my fellow-citizens, for one moment, over this melancholy and monitory 
lesson of history; and with the tear that drops for the calamities brought on 
mankind by their adverse opinions and selfish passions, let our gratitude mingle 
an ejaculation to Heaven, for the propitious concord which has distinguished the 



receive and console them for the catastrophe of their own. 

I make no apology for having dwelt so long on the contemplation of these federal 
precedents. Experience is the oracle of truth; and where its responses are 
unequivocal, they ought to be conclusive and sacred. The important truth, which it 
unequivocally pronounces in the present case, is that a sovereignty over 
sovereigns, a government over governments, a legislation for communities, as 
contradistinguished from individuals, as it is a solecism in theory, so in practice it 
is subversive of the order and ends of civil polity, by substituting VIOLENCE in 
place of LAW, or the destructive COERCION of the SWORD in place of the mild 
and salutary COERCION of the MAGISTRACY. 

PUBLIUS 



HAVING in the three last numbers taken a summary review of the principal 
circumstances and events which have depicted the genius and fate of other 
confederate governments, I shall now proceed in the enumeration of the most 
important of those defects which have hitherto disappointed our hopes from the 
system established among ourselves. To form a safe and satisfactory judgment of 
the proper remedy, it is absolutely necessary that we should be well acquainted 
with the extent and malignity of the disease. 

The next most palpable defect of the subsisting Confederation, is the total want of 
a SANCTION to its laws. The United States, as now composed, have no powers 
to exact obedience, or punish disobedience to their resolutions, either by 
pecuniary mulcts, by a suspension or divestiture of privileges, or by any other 
constitutional mode. There is no express delegation of authority to them to use 
force against delinquent members; and if such a right should be ascribed to the 
federal head, as resulting from the nature of the social compact between the 
States, it must be by inference and construction, in the face of that part of the 
second article, by which it is declared, "that each State shall re tain every power, 
jurisdiction, and right, not EXPRESSLY delegated to the United States in 
Congress assembled." There is, doubtless, a striking absurdity in supposing that 



phenomenon in the political world. 

The want of a mutual guaranty of the State governments is another capital 
imperfection in the federal plan. There is nothing of this kind declared in the 
articles that compose it; and to imply a tacit guaranty from considerations of utility, 
would be a still more flagrant departure from the clause which has been 
mentioned, than to imply a tacit power of coercion from the like considerations. 
The want of a guaranty, though it might in its consequences endanger the Union, 
does not so immediately attack its existence as the want of a constitutional 
sanction to its laws. 

Without a guaranty the assistance to be derived from the Union in repelling those 
domestic dangers which may sometimes threaten the existence of the State 
constitutions, must be renounced. Usurpation may rear its crest in each State, and 
trample upon the liberties of the people, while the national government could 
legally do nothing more than behold its encroachments with indignation and regret. 
A successful faction may erect a tyranny on the ruins of order and law, while no 
succor could constitutionally be afforded by the Union to the friends and supporters 
of the government. The tempestuous situation from which Massachusetts has 
scarcely emerged, evinces that dangers of this kind are not merely speculative. 



u ic kjcupic 111 a. icycii ai iu fjcaucauic inuuc. 1 1 no nyi il vvuuiu ici i icui 1 ui iuii i in 1101 icu. 

The guaranty could only operate against changes to be effected by violence. 
Towards the preventions of calamities of this kind, too many checks cannot be 
provided. The peace of society and the stability of government depend absolutely 
on the efficacy of the precautions adopted on this head. Where the whole power of 
the government is in the hands of the people, there is the less pretense for the use 
of violent remedies in partial or occasional distempers of the State. The natural 
cure for an ill-administration, in a popular or representative constitution, is a 
change of men. A guaranty by the national authority would be as much levelled 
against the usurpations of rulers as against the ferments and outrages of faction 
and sedition in the community. 

The principle of regulating the contributions of the States to the common treasury 
by QUOTAS is another fundamental error in the Confederation. Its repugnancy to 
an adequate supply of the national exigencies has been already pointed out, and 
has sufficiently appeared from the trial which has been made of it. I speak of it now 
solely with a view to equality among the States. Those who have been 
accustomed to contemplate the circumstances which produce and constitute 
national wealth, must be satisfied that there is no common standard or barometer 
by which the degrees of it can be ascertained. Neither the value of lands, nor the 



convinced that the respective abilities of those States, in relation to revenue, bear 
little or no analogy to their comparative stock in lands or to their comparative 
population. The position may be equally illustrated by a similar process between 
the counties of the same State. No man who is acquainted with the State of New 
York will doubt that the active wealth of King's County bears a much greater 
proportion to that of Montgomery than it would appear to be if we should take 
either the total value of the lands or the total number of the people as a criterion! 

The wealth of nations depends upon an infinite variety of causes. Situation, soil, 
climate, the nature of the productions, the nature of the government, the genius of 
the citizens, the degree of information they possess, the state of commerce, of 
arts, of industry, these circumstances and many more, too complex, minute, or 
adventitious to admit of a particular specification, occasion differences hardly 
conceivable in the relative opulence and riches of different countries. The 
consequence clearly is that there can be no common measure of national wealth, 
and, of course, no general or stationary rule by which the ability of a state to pay 
taxes can be determined. The attempt, therefore, to regulate the contributions of 
the members of a confederacy by any such rule, cannot fail to be productive of 
glaring inequality and extreme oppression. 



anu, hi yciicicu, cm uuuco upui i aiuuco ui uui ioui i i|juui i, may uc ^umpaicu lu a 

fluid, which will, in time, find its level with the means of paying them. The amount to 
be contributed by each citizen will in a degree be at his own option, and can be 
regulated by an attention to his resources. The rich maybe extravagant, the poor 
can be frugal; and private oppression may always be avoided by a judicious 
selection of objects proper for such impositions. If inequalities should arise in 
some States from duties on particular objects, these will, in all probability, be 
counterbalanced by proportional inequalities in other States, from the duties on 
other objects. In the course of time and things, an equilibrium, as far as it is 
attainable in so complicated a subject, will be established everywhere. Or, if 
inequalities should still exist, they would neither be so great in their degree, so 
uniform in their operation, nor so odious in their appearance, as those which would 
necessarily spring from quotas, upon any scale that can possibly be devised. 

It is a signal advantage of taxes on articles of consumption, that they contain in 
their own nature a security against excess. They prescribe their own limit; which 
cannot be exceeded without defeating the end proposed, that is, an extension of 
the revenue. When applied to this object, the saying is as just as it is witty, that, "in 
political arithmetic, two and two do not always make four." If duties are too high, 
they lessen the consumption; the collection is eluded; and the product to the 



IUI LI IC pUipU^C IIILCIIUCU, I IUI I IUCIO, III LI IC VICVV Ul Ol I I l|JIIUI Ly ai IU LCI LClll ILy, Cll c 

entitled to a preference. In every country it is a herculean task to obtain a valuation 
of the land; in a country imperfectly settled and progressive in improvement, the 
difficulties are increased almost to impracticability. The expense of an accurate 
valuation is, in all situations, a formidable objection. In a branch of taxation where 
no limits to the discretion of the government are to be found in the nature of things, 
the establishment of a fixed rule, not incompatible with the end, maybe attended 
with fewer inconveniences than to leave that discretion altogether at large. 

PUBLIUS 



FEDERALIST No. 22. The Same Subject 
Continued (Other Defects of the Present 

Confederation) 



The want of a power to regulate commerce is by all parties allowed to be of the 
number. The utility of such a power has been anticipated under the first head of our 
inquiries; and for this reason, as well as from the universal conviction entertained 
upon the subject, little need be added in this place. It is indeed evident, on the 
most superficial view, that there is no object, either as it respects the interests of 
trade or finance, that more strongly demands a federal superintendence. The want 
of it has already operated as a bar to the formation of beneficial treaties with 
foreign powers, and has given occasions of dissatisfaction between the States. 
No nation acquainted with the nature of our political association would be unwise 
enough to enter into stipulations with the United States, by which they conceded 
privileges of any importance to them, while they were apprised that the 
engagements on the part of the Union might at any moment be violated by its 
members, and while they found from experience that they might enjoy every 
advantage they desired in our markets, without granting us any return but such as 
their momentary convenience might suggest. It is not, therefore, to be wondered at 
that Mr. Jenkinson, in ushering into the House of Commons a bill for regulating the 
temporary intercourse between the two countries, should preface its introduction 
by a declaration that similar provisions in former bills had been found to answer 
every purpose to the commerce of Great Britain, and that it would be prudent to 



complaint to others, and it is to be feared that examples of this nature, if not 
restrained by a national control, would be multiplied and extended till they became 
not less serious sources of animosity and discord than injurious impediments to 
the intercourse between the different parts of the Confederacy. "The commerce of 
the German empire(2) is in continual trammels from the multiplicity of the duties 
which the several princes and states exact upon the merchandises passing 
through their territories, by means of which the fine streams and navigable rivers 
with which Germany is so happily watered are rendered almost useless." Though 
the genius of the people of this country might never permit this description to be 
strictly applicable to us, yet we may reasonably expect, from the gradual conflicts 
of State regulations, that the citizens of each would at length come to be 
considered and treated by the others in no better light than that of foreigners and 
aliens. 

The power of raising armies, by the most obvious construction of the articles of the 
Confederation, is merely a power of making requisitions upon the States for 
quotas of men. This practice in the course of the late war, was found replete with 
obstructions to a vigorous and to an economical system of defense. It gave birth to 
a competition between the States which created a kind of auction for men. In order 



i i no 1 1 icu iuu ui icuoii ly uuupcj 10 i iui 1 1 iui c ui m ici luiy lu clui iui i ly a.\ iu viyui u icu i u 10 

to an equal distribution of the burden. The States near the seat of war, influenced 
by motives of self-preservation, made efforts to furnish their quotas, which even 
exceeded their abilities; while those at a distance from danger were, for the most 
part, as remiss as the others were diligent, in their exertions. The immediate 
pressure of this inequality was not in this case, as in that of the contributions of 
money, alleviated by the hope of a final liquidation. The States which did not pay 
their proportions of money might at least be charged with their deficiencies; but no 
account could be formed of the deficiencies in the supplies of men. We shall not, 
however, see much reason to regret the want of this hope, when we consider how 
little prospect there is, that the most delinquent States will ever be able to make 
compensation for their pecuniary failures. The system of quotas and requisitions, 
whether it be applied to men or money, is, in every view, a system of imbecility in 
the Union, and of inequality and injustice among the members. 

The right of equal suffrage among the States is another exceptionable part of the 
Confederation. Every idea of proportion and every rule of fair representation 
conspire to condemn a principle, which gives to Rhode Island an equal weight in 
the scale of power with Massachusetts, or Connecticut, or New York; and to 
Delaware an equal voice in the national deliberations with Pennsylvania, or 



scale, would be not merely to be insensible to the love of power, but even to 
sacrifice the desire of equality. It is neither rational to expect the first, nor just to 
require the last. The smaller States, considering how peculiarly their safety and 
welfare depend on union, ought readily to renounce a pretension which, if not 
relinquished, would prove fatal to its duration. 

It may be objected to this, that not seven but nine States, or two thirds of the whole 
number, must consent to the most important resolutions; and it may be thence 
inferred that nine States would always comprehend a majority of the Union. But 
this does not obviate the impropriety of an equal vote between States of the most 
unequal dimensions and populousness; nor is the inference accurate in point of 
fact; for we can enumerate nine States which contain less than a majority of the 
people;(4) and it is constitutionally possible that these nine may give the vote. 
Besides, there are matters of considerable moment determinable by a bare 
majority; and there are others, concerning which doubts have been entertained, 
which, if interpreted in favor of the sufficiency of a vote of seven States, would 
extend its operation to interests of the first magnitude. In addition to this, it is to be 
observed that there is a probability of an increase in the number of States, and no 
provision for a proportional augmentation of the ratio of votes. 



contribute to security. But its real operation is to embarrass the administration, to 
destroy the energy of the government, and to substitute the pleasure, caprice, or 
artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations 
and decisions of a respectable majority. In those emergencies of a nation, in 
which the goodness or badness, the weakness or strength of its government, is of 
the greatest importance, there is commonly a necessity for action. The public 
business must, in some way or other, go forward. If a pertinacious minority can 
control the opinion of a majority, respecting the best mode of conducting it, the 
majority, in order that something may be done, must conform to the views of the 
minority; and thus the sense of the smaller number will overrule that of the greater, 
and give a tone to the national proceedings. Hence, tedious delays; continual 
negotiation and intrigue; contemptible compromises of the public good. And yet, in 
such a system, it is even happy when such compromises can take place: for upon 
some occasions things will not admit of accommodation; and then the measures 
of government must be injuriously suspended, or fatally defeated. It is often, by the 
impracticability of obtaining the concurrence of the necessary number of votes, 
kept in a state of inaction. Its situation must always savor of weakness, sometimes 
border upon anarchy. 



Suppose, for instance, we were engaged in a war, in conjunction with one foreign 
nation, against another. Suppose the necessity of our situation demanded peace, 
and the interest or ambition of our ally led him to seek the prosecution of the war, 
with views that might justify us in making separate terms. In such a state of things, 
this ally of ours would evidently find it much easier, by his bribes and intrigues, to 
tie up the hands of government from making peace, where two thirds of all the 
votes were requisite to that object, than where a simple majority would suffice. In 
the first case, he would have to corrupt a smaller number; in the last, a greater 
number. Upon the same principle, it would be much easier for a foreign power with 
which we were at war to perplex our councils and embarrass our exertions. And, in 
a commercial view, we maybe subjected to similar inconveniences. A nation, with 
which we might have a treaty of commerce, could with much greater facility prevent 
our forming a connection with her competitor in trade, though such a connection 
should be ever so beneficial to ourselves. 

Evils of this description ought not to be regarded as imaginary. One of the weak 
sides of republics, among their numerous advantages, is that they afford too easy 
an inlet to foreign corruption. An hereditary monarch, though often disposed to 
sacrifice his subjects to his ambition, has so great a personal interest in the 



luiciyii uuiiu|juuii hi icpuun^cui yuvci i n i ici no. nuvv iiiul.ii u no uui in iuuicu lu u ic 

ruin of the ancient commonwealths has been already delineated. It is well known 
that the deputies of the United Provinces have, in various instances, been 
purchased by the emissaries of the neighboring kingdoms. The Earl of 
Chesterfield (if my memory serves me right), in a letter to his court, intimates that 
his success in an important negotiation must depend on his obtaining a major's 
commission for one of those deputies. And in Sweden the parties were alternately 
bought by France and England in so barefaced and notorious a manner that it 
excited universal disgust in the nation, and was a principal cause that the most 
limited monarch in Europe, in a single day, without tumult, violence, or opposition, 
became one of the most absolute and uncontrolled. 

A circumstance which crowns the defects of the Confederation remains yet to be 
mentioned, the want of a judiciary power. Laws are a dead letter without courts to 
expound and define their true meaning and operation. The treaties of the United 
States, to have any force at all, must be considered as part of the law of the land. 
Their true import, as far as respects individuals, must, like all other laws, be 
ascertained by judicial determinations. To produce uniformity in these 
determinations, they ought to be submitted, in the last resort, to one SUPREME 
TRIBUNAL. And this tribunal ought to be instituted under the same authority which 



li icu u ic iavvo ui U ic vvi iuic ciic 111 uai iyci ui ucniy lui ili civci icu uy u ic laws ui li ic 

parts. In this case, if the particular tribunals are invested with a right of ultimate 
jurisdiction, besides the contradictions to be expected from difference of opinion, 
there will be much to fear from the bias of local views and prejudices, and from the 
interference of local regulations. As often as such an interference was to happen, 
there would be reason to apprehend that the provisions of the particular laws might 
be preferred to those of the general laws; for nothing is more natural to men in 
office than to look with peculiar deference towards that authority to which they owe 
their official existence. 

The treaties of the United States, under the present Constitution, are liable to the 
infractions of thirteen different legislatures, and as many different courts of final 
jurisdiction, acting under the authority of those legislatures. The faith, the 
reputation, the peace of the whole Union, are thus continually at the mercy of the 
prejudices, the passions, and the interests of every member of which it is 
composed. Is it possible that foreign nations can either respect or confide in such 
a government? Is it possible that the people of America will longer consent to trust 
their honor, their happiness, their safety, on so precarious a foundation? 

In this review of the Confederation, I have confined myself to the exhibition of its 



u ic pin luipico ui yuuu yuvci i n i ici il, lu ii iliuol il vvili i u iuic auuiuui lai puvvci ^ vvi iiui i, 

even the moderate and more rational adversaries of the proposed Constitution 
admit, ought to reside in the United States. If that plan should not be adopted, and 
if the necessity of the Union should be able to withstand the ambitious aims of 
those men who may indulge magnificent schemes of personal aggrandizement 
from its dissolution, the probability would be, that we should run into the project of 
conferring supplementary powers upon Congress, as they are now constituted; 
and either the machine, from the intrinsic feebleness of its structure, will moulder 
into pieces, in spite of our ill-judged efforts to prop it; or, by successive 
augmentations of its force an energy, as necessity might prompt, we shall finally 
accumulate, in a single body, all the most important prerogatives of sovereignty, 
and thus entail upon our posterity one of the most execrable forms of government 
that human infatuation ever contrived. Thus, we should create in reality that very 
tyranny which the adversaries of the new Constitution either are, or affect to be, 
solicitous to avert. 

It has not a little contributed to the infirmities of the existing federal system, that it 
never had a ratification by the PEOPLE. Resting on no better foundation than the 
consent of the several legislatures, it has been exposed to frequent and intricate 
questions concerning the validity of its powers, and has, in some instances, given 



PUBLIUS 

1. This, as nearly as I can recollect, was the sense of his speech on introducing the 
last bill. 

2. Encyclopedia, article "Empire." 

3. New Hampshire, Rhode Island, New Jersey, Delaware, Georgia, South 
Carolina, and Maryland are a majority of the whole number of the States, but they 
do not contain one third of the people. 

4. Add New York and Connecticut to the foregoing seven, and they will be less 
than a majority. 



FEDERALIST No. 23. The Necessity of a 



to the preservation of the Union, is the point at the examination of which we are 
now arrived. 

This inquiry will naturally divide itself into three branchesA — the objects to be 
provided for by the federal government, the quantity of power necessary to the 
accomplishment of those objects, the persons upon whom that power ought to 
operate. Its distribution and organization will more properly claim our attention 
under the succeeding head. 

The principal purposes to be answered by union are theseA — the common 
defense of the members; the preservation of the public peace as well against 
internal convulsions as external attacks; the regulation of commerce with other 
nations and between the States; the superintendence of our intercourse, political 
and commercial, with foreign countries. 

The authorities essential to the common defense are these: to raise armies; to 
build and equip fleets; to prescribe rules for the government of both; to direct their 
operations; to provide for their support. These powers ought to exist without 
limitation, BECAUSE IT IS IMPOSSIBLE TO FORESEE OR DEFINE THE 
EXTENT AND VARIETY OF NATIONAL EXIGENCIES, OR THE 



IVIIZMIMO UUyilL LU Ut! |JI U|JUI UUI lt!U LU Lilt! IZIMU, Lilt! (Jt!l £>UI l£>, HUM I VVI IUi)t! Ciy tM IL.y 

the attainment of any END is expected, ought to possess the MEANS by which it 
is to be attained. 

Whether there ought to be a federal government intrusted with the care of the 
common defense, is a question in the first instance, open for discussion; but the 
moment it is decided in the affirmative, it will follow, that that government ought to 
be clothed with all the powers requisite to complete execution of its trust. And 
unless it can be shown that the circumstances which may affect the public safety 
are reducible within certain determinate limits; unless the contrary of this position 
can be fairly and rationally disputed, it must be admitted, as a necessary 
consequence, that there can be no limitation of that authority which is to provide for 
the defense and protection of the community, in any matter essential to its efficacy 
that is, in any matter essential to the FORMATION, DIRECTION, or SUPPORT of 
the NATIONAL FORCES. 

Defective as the present Confederation has been proved to be, this principle 
appears to have been fully recognized by the framers of it; though they have not 
made proper or adequate provision for its exercise. Congress have an unlimited 
discretion to make requisitions of men and money; to govern the army and navy; to 



i icocoony iui ai i ci mi c ui lai iljc n i u ic iiiol jjiii iui|jico ui u ic oyoici n, u icu n vvc cue n i 

earnest about giving the Union energy and duration, we must abandon the vain 
project of legislating upon the States in their collective capacities; we must extend 
the laws of the federal government to the individual citizens of America; we must 
discard the fallacious scheme of quotas and requisitions, as equally impracticable 
and unjust. The result from all this is that the Union ought to be invested with full 
power to levy troops; to build and equip fleets; and to raise the revenues which will 
be required for the formation and support of an army and navy, in the customary 
and ordinary modes practiced in other governments. 

If the circumstances of our country are such as to demand a compound instead of 
a simple, a confederate instead of a sole, government, the essential point which 
will remain to be adjusted will be to discriminate the OBJECTS, as far as it can be 
done, which shall appertain to the different provinces or departments of power; 
allowing to each the most ample authority for fulfilling the objects committed to its 
charge. Shall the Union be constituted the guardian of the common safety? Are 
fleets and armies and revenues necessary to this purpose? The government of the 
Union must be empowered to pass all laws, and to make all regulations which 
have relation to them. The same must be the case in respect to commerce, and to 
every other matter to which its jurisdiction is permitted to extend. Is the 



uiiccucii, ao LI IC ICLJICOCI ILCILI vc ui li ic vvnwi_L^, Will ICCI I IOC 1 1 I I IUOL UCCLJiy 

interested in the preservation of every part; which, from the responsibility implied 
in the duty assigned to it, will be most sensibly impressed with the necessity of 
proper exertions; and which, by the extension of its authority throughout the States, 
can alone establish uniformity and concert in the plans and measures by which the 
common safety is to be secured? Is there not a manifest inconsistency in 
devolving upon the federal government the care of the general defense, and 
leaving in the State governments the EFFECTIVE powers by which it is to be 
provided for? Is not a want of co-operation the infallible consequence of such a 
system? And will not weakness, disorder, an undue distribution of the burdens and 
calamities of war, an unnecessary and intolerable increase of expense, be its 
natural and inevitable concomitants? Have we not had unequivocal experience of 
its effects in the course of the revolution which we have just accomplished? 

Every view we may take of the subject, as candid inquirers after truth, will serve to 
convince us, that it is both unwise and dangerous to deny the federal government 
an unconfined authority, as to all those objects which are intrusted to its 
management. It will indeed deserve the most vigilant and careful attention of the 
people, to see that it be modeled in such a manner as to admit of its being safely 
vested with the requisite powers. If any plan which has been, or may be, offered to 



are not too extensive for the OBJECTS of federal administration, or, in other 
words, for the management of our NATIONAL INTERESTS; nor can any 
satisfactory argument be framed to show that they are chargeable with such an 
excess. If it be true, as has been insinuated by some of the writers on the other 
side, that the difficulty arises from the nature of the thing, and that the extent of the 
country will not permit us to form a government in which such ample powers can 
safely be reposed, it would prove that we ought to contract our views, and resort to 
the expedient of separate confederacies, which will move within more practicable 
spheres. For the absurdity must continually stare us in the face of confiding to a 
government the direction of the most essential national interests, without daring to 
trust it to the authorities which are indispensable to their proper and efficient 
management. Let us not attempt to reconcile contradictions, but firmly embrace a 
rational alternative. 

I trust, however, that the impracticability of one general system cannot be shown. I 
am greatly mistaken, if any thing of weight has yet been advanced of this tendency; 
and I flatter myself, that the observations which have been made in the course of 
these papers have served to place the reverse of that position in as clear a light as 
any matter still in the womb of time and experience can be susceptible of. This, at 



FEDERALIST No. 24. The Powers Necessary to 
the Common Defense Further Considered 

For the Independent Journal. Wednesday, December 19, 

1787 

HAMILTON 

To the People of the State of New York: 

TO THE powers proposed to be conferred upon the federal government, in 
respect to the creation and direction of the national forces, I have met with but one 
specific objection, which, if I understand it right, is this, that proper provision has 
not been made against the existence of standing armies in time of peace; an 



uui Diiiuuui 10, a\ iu i cjc^lcu ii i an u ic icoi. 

A stranger to our politics, who was to read our newspapers at the present juncture, 
without having previously inspected the plan reported by the convention, would be 
naturally led to one of two conclusions: either that it contained a positive injunction, 
that standing armies should be kept up in time of peace; or that it vested in the 
EXECUTIVE the whole power of levying troops, without subjecting his discretion, 
in any shape, to the control of the legislature. 

If he came afterwards to peruse the plan itself, he would be surprised to discover, 
that neither the one nor the other was the case; that the whole power of raising 
armies was lodged in the LEGISLATURE, not in the EXECUTIVE; that this 
legislature was to be a popular body, consisting of the representatives of the 
people periodically elected; and that instead of the provision he had supposed in 
favor of standing armies, there was to be found, in respect to this object, an 
important qualification even of the legislative discretion, in that clause which 
forbids the appropriation of money for the support of an army for any longer period 
than two years a precaution which, upon a nearer view of it, will appear to be a 
great and real security against the keeping up of troops without evident necessity. 



uli ici cicvcii i iau ciliici uudcivcu a piuiuuiiu oiiciiuc ui i U ic ouujcui, ui nau III 

express terms admitted the right of the Legislature to authorize their existence. 

Still, however he would be persuaded that there must be some plausible 
foundation for the cry raised on this head. He would never be able to imagine, 
while any source of information remained unexplored, that it was nothing more 
than an experiment upon the public credulity, dictated either by a deliberate 
intention to deceive, or by the overflowings of a zeal too intemperate to be 
ingenuous. It would probably occur to him, that he would be likely to find the 
precautions he was in search of in the primitive compact between the States. 
Here, at length, he would expect to meet with a solution of the enigma. No doubt, 
he would observe to himself, the existing Confederation must contain the most 
explicit provisions against military establishments in time of peace; and a 
departure from this model, in a favorite point, has occasioned the discontent which 
appears to influence these political champions. 

If he should now apply himself to a careful and critical survey of the articles of 
Confederation, his astonishment would not only be increased, but would acquire a 
mixture of indignation, at the unexpected discovery, that these articles, instead of 
containing the prohibition he looked for, and though they had, with jealous 



sigh for the frailty of human nature, and would lament, that in a matter so interesting 
to the happiness of millions, the true merits of the question should be perplexed 
and entangled by expedients so unfriendly to an impartial and right determination. 
Even such a man could hardly forbear remarking, that a conduct of this kind has 
too much the appearance of an intention to mislead the people by alarming their 
passions, rather than to convince them by arguments addressed to their 
understandings. 

But however little this objection may be countenanced, even by precedents among 
ourselves, it may be satisfactory to take a nearer view of its intrinsic merits. From 
a close examination it will appear that restraints upon the discretion of the 
legislature in respect to military establishments in time of peace, would be 
improper to be imposed, and if imposed, from the necessities of society, would be 
unlikely to be observed. 

Though a wide ocean separates the United States from Europe, yet there are 
various considerations that warn us against an excess of confidence or security. 
On one side of us, and stretching far into our rear, are growing settlements subject 
to the dominion of Britain. On the other side, and extending to meet the British 
settlements, are colonies and establishments subject to the dominion of Spain. 



precarious links of political connection. These circumstances combined, 
admonish us not to be too sanguine in considering ourselves as entirely out of the 
reach of danger. 

Previous to the Revolution, and ever since the peace, there has been a constant 
necessity for keeping small garrisons on our Western frontier. No person can 
doubt that these will continue to be indispensable, if it should only be against the 
ravages and depredations of the Indians. These garrisons must either be 
furnished by occasional detachments from the militia, or by permanent corps in the 
pay of the government. The first is impracticable; and if practicable, would be 
pernicious. The militia would not long, if at all, submit to be dragged from their 
occupations and families to perform that most disagreeable duty in times of 
profound peace. And if they could be prevailed upon or compelled to do it, the 
increased expense of a frequent rotation of service, and the loss of labor and 
disconcertion of the industrious pursuits of individuals, would form conclusive 
objections to the scheme. It would be as burdensome and injurious to the public as 
ruinous to private citizens. The latter resource of permanent corps in the pay of the 
government amounts to a standing army in time of peace; a small one, indeed, but 
not the less real for being small. Here is a simple view of the subject, that shows us 



lauiinaic; iuiuic u ivaoiui 10 ui u ic ici i lan iuci . n may uc auucu u icu oui i ic ui u iuoc 

posts will be keys to the trade with the Indian nations. Can any man think it would 
be wise to leave such posts in a situation to be at any instant seized by one or the 
other of two neighboring and formidable powers? To act this part would be to 
desert all the usual maxims of prudence and policy. 

If we mean to be a commercial people, or even to be secure on our Atlantic side, 
we must endeavor, as soon as possible, to have a navy. To this purpose there 
must be dock-yards and arsenals; and for the defense of these, fortifications, and 
probably garrisons. When a nation has become so powerful by sea that it can 
protect its dock-yards by its fleets, this supersedes the necessity of garrisons for 
that purpose; but where naval establishments are in their infancy, moderate 
garrisons will, in all likelihood, be found an indispensable security against 
descents for the destruction of the arsenals and dock-yards, and sometimes of the 
fleet itself. 

PUBLIUS 

1 This statement of the matter is taken from the printed collection of State 



collection; but that those also recognize the right of the legislative authority in this 
respect. 



FEDERALIST No. 25. The Same Subject 

Continued (The Powers Necessary to the 

Common Defense Further Considered) 

From the New York Packet. Friday, December 21, 1787. 

HAMILTON 
To the People of the State of New York: 



cu iu ui auuiiiinuii ucaouiy. n i icippci 10 uiai ouinc oiaico, iium luuai diiuauun, aic 

more directly exposed. New York is of this class. Upon the plan of separate 
provisions, New York would have to sustain the whole weight of the establishments 
requisite to her immediate safety, and to the mediate or ultimate protection of her 
neighbors. This would neither be equitable as it respected New York nor safe as it 
respected the other States. Various inconveniences would attend such a system. 
The States, to whose lot it might fall to support the necessary establishments, 
would be as little able as willing, for a considerable time to come, to bear the 
burden of competent provisions. The security of all would thus be subjected to the 
parsimony, improvidence, or inability of a part. If the resources of such part 
becoming more abundant and extensive, its provisions should be proportionally 
enlarged, the other States would quickly take the alarm at seeing the whole military 
force of the Union in the hands of two or three of its members, and those probably 
amongst the most powerful. They would each choose to have some counterpoise, 
and pretenses could easily be contrived. In this situation, military establishments, 
nourished by mutual jealousy, would be apt to swell beyond their natural or proper 
size; and being at the separate disposal of the members, they would be engines 
for the abridgment or demolition of the national authority. 

Reasons have been already given to induce a supposition that the State 



jealous than in those of which they are least likely to be jealous. For it is a truth, 
which the experience of ages has attested, that the people are always most in 
danger when the means of injuring their rights are in the possession of those of 
whom they entertain the least suspicion. 

The framers of the existing Confederation, fully aware of the danger to the Union 
from the separate possession of military forces by the States, have, in express 
terms, prohibited them from having either ships or troops, unless with the consent 
of Congress. The truth is, that the existence of a federal government and military 
establishments under State authority are not less at variance with each other than 
a due supply of the federal treasury and the system of quotas and requisitions. 

There are other lights besides those already taken notice of, in which the 
impropriety of restraints on the discretion of the national legislature will be equally 
manifest. The design of the objection, which has been mentioned, is to preclude 
standing armies in time of peace, though we have never been informed how far it 
is designed the prohibition should extend; whether to raising armies as well as to 
KEEPING THEM UP in a season of tranquillity or not. If it be confined to the latter it 
will have no precise signification, and it will be ineffectual for the purpose intended. 
When armies are once raised what shall be denominated "keeping them up," 



was in any degree of jeopardy. It is easy to perceive that a discretion so 
latitudinary as this would afford ample room for eluding the force of the provision. 

The supposed utility of a provision of this kind can only be founded on the 
supposed probability, or at least possibility, of a combination between the 
executive and the legislative, in some scheme of usurpation. Should this at any 
time happen, how easy would it be to fabricate pretenses of approaching danger! 
Indian hostilities, instigated by Spain or Britain, would always be at hand. 
Provocations to produce the desired appearances might even be given to some 
foreign power, and appeased again by timely concessions. If we can reasonably 
presume such a combination to have been formed, and that the enterprise is 
warranted by a sufficient prospect of success, the army, when once raised, from 
whatever cause, or on whatever pretext, may be applied to the execution of the 
project. 

If, to obviate this consequence, it should be resolved to extend the prohibition to 
the RAISING of armies in time of peace, the United States would then exhibit the 
most extraordinary spectacle which the world has yet seen, that of a nation 
incapacitated by its Constitution to prepare for defense, before it was actually 
invaded. As the ceremony of a formal denunciation of war has of late fallen into 



ncic i cA|jcbL vvc 01 id 1 1 uc luiu u icll u ic 1 1 mi Lia. ui li ic uuuiiLiy 10 ilo iiclluicli uuivvclii\, 

and would be at all times equal to the national defense. This doctrine, in 
substance, had like to have lost us our independence. It cost millions to the United 
States that might have been saved. The facts which, from our own experience, 
forbid a reliance of this kind, are too recent to permit us to be the dupes of such a 
suggestion. The steady operations of war against a regular and disciplined army 
can only be successfully conducted by a force of the same kind. Considerations of 
economy, not less than of stability and vigor, confirm this position. The American 
militia, in the course of the late war, have, by their valor on numerous occasions, 
erected eternal monuments to their fame; but the bravest of them feel and know 
that the liberty of their country could not have been established by their efforts 
alone, however great and valuable they were. War, like most other things, is a 
science to be acquired and perfected by diligence, by perseverance, by time, and 
by practice. 

All violent policy, as it is contrary to the natural and experienced course of human 
affairs, defeats itself. Pennsylvania, at this instant, affords an example of the truth 
of this remark. The Bill of Rights of that State declares that standing armies are 
dangerous to liberty, and ought not to be kept up in time of peace. Pennsylvania, 
nevertheless, in a time of profound peace, from the existence of partial disorders 



legislative discretion. It also teaches us, in its application to the United States, how 
little the rights of a feeble government are likely to be respected, even by its own 
constituents. And it teaches us, in addition to the rest, how unequal parchment 
provisions are to a struggle with public necessity. 

It was a fundamental maxim of the Lacedaemonian commonwealth, that the post 
of admiral should not be conferred twice on the same person. The Peloponnesian 
confederates, having suffered a severe defeat at sea from the Athenians, 
demanded Lysander, who had before served with success in that capacity, to 
command the combined fleets. The Lacedaemonians, to gratify their allies, and 
yet preserve the semblance of an adherence to their ancient institutions, had 
recourse to the flimsy subterfuge of investing Lysander with the real power of 
admiral, under the nominal title of vice-admiral. This instance is selected from 
among a multitude that might be cited to confirm the truth already advanced and 
illustrated by domestic examples; which is, that nations pay little regard to rules 
and maxims calculated in their very nature to run counter to the necessities of 
society. Wise politicians will be cautious about fettering the government with 
restrictions that cannot be observed, because they know that every breach of the 
fundamental laws, though dictated by necessity, impairs that sacred reverence 



Legislative Authority in Regard to the Common 

Defense Considered. 

For the Independent Journal. Saturday, December 22, 1788 

HAMILTON 

To the People of the State of New York: 

IT WAS a thing hardly to be expected that in a popular revolution the minds of men 
should stop at that happy mean which marks the salutary boundary between 
POWER and PRIVILEGE, and combines the energy of government with the 
security of private rights. A failure in this delicate and important point is the great 
source of the inconveniences we experience, and if we are not cautious to avoid a 
repetition of the error, in our future attempts to rectify and ameliorate our system, 
we may travel from one chimerical project to another; we may try change after 
change; but we shall never be likely to make any material change for the better. 



respect, the general decision of America; and instead of being taught by 
experience the propriety of correcting any extremes into which we may have 
heretofore run, they appear disposed to conduct us into others still more 
dangerous, and more extravagant. As if the tone of government had been found 
too high, or too rigid, the doctrines they teach are calculated to induce us to 
depress or to relax it, by expedients which, upon other occasions, have been 
condemned or forborne. It may be affirmed without the imputation of invective, that 
if the principles they inculcate, on various points, could so far obtain as to become 
the popular creed, they would utterly unfit the people of this country for any species 
of government whatever. But a danger of this kind is not to be apprehended. The 
citizens of America have too much discernment to be argued into anarchy. And I 
am much mistaken, if experience has not wrought a deep and solemn conviction in 
the public mind, that greater energy of government is essential to the welfare and 
prosperity of the community. 

It may not be amiss in this place concisely to remark the origin and progress of the 
idea, which aims at the exclusion of military establishments in time of peace. 
Though in speculative minds it may arise from a contemplation of the nature and 
tendency of such institutions, fortified by the events that have happened in other 



uvvi i auuiuiiiy, i\c|jl ui i iuul hi uiiic ui fjcauc a uuuy ui j,uuu icyuiai liuu|jo. aai iu 

this number James II. increased to 30,000; who were paid out of his civil list. At the 
revolution, to abolish the exercise of so dangerous an authority, it became an 
article of the Bill of Rights then framed, that "the raising or keeping a standing 
army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF 
PARLIAMENT, was against law." 

In that kingdom, when the pulse of liberty was at its highest pitch, no security 
against the danger of standing armies was thought requisite, beyond a prohibition 
of their being raised or kept up by the mere authority of the executive magistrate. 
The patriots, who effected that memorable revolution, were too temperate, too 
wellinformed, to think of any restraint on the legislative discretion. They were 
aware that a certain number of troops for guards and garrisons were 
indispensable; that no precise bounds could be set to the national exigencies; that 
a power equal to every possible contingency must exist somewhere in the 
government: and that when they referred the exercise of that power to the judgment 
of the legislature, they had arrived at the ultimate point of precaution which was 
reconcilable with the safety of the community. 

From the same source, the people of America may be said to have derived an 



LEGISLATURE. I call them unnecessary, because the reason which had 
introduced a similar provision into the English Bill of Rights is not applicable to any 
of the State constitutions. The power of raising armies at all, under those 
constitutions, can by no construction be deemed to reside anywhere else, than in 
the legislatures themselves; and it was superfluous, if not absurd, to declare that a 
matter should not be done without the consent of a body, which alone had the 
power of doing it. Accordingly, in some of these constitutions, and among others, 
in that of this State of New York, which has been justly celebrated, both in Europe 
and America, as one of the best of the forms of government established in this 
country, there is a total silence upon the subject. 

It is remarkable, that even in the two States which seem to have meditated an 
interdiction of military establishments in time of peace, the mode of expression 
made use of is rather cautionary than prohibitory. It is not said, that standing 
armies SHALL NOT BE kept up, but that they OUGHT NOT to be kept up, in time 
of peace. This ambiguity of terms appears to have been the result of a conflict 
between jealousy and conviction; between the desire of excluding such 
establishments at all events, and the persuasion that an absolute exclusion would 
be unwise and unsafe. 



uy oicciii ly uicai ui cu i n i ipiuuci il calici i ic, cu iu uy ucn ilj uci icouy uui i iucuiuic vviu i 

a proper provision for the exigencies of the nation, will have a salutary and 
powerful operation. 

The legislature of the United States will be OBLIGED, by this provision, once at 
least in every two years, to deliberate upon the propriety of keeping a military force 
on foot; to come to a new resolution on the point; and to declare their sense of the 
matter, by a formal vote in the face of their constituents. They are not AT LIBERTY 
to vest in the executive department permanent funds for the support of an army, if 
they were even incautious enough to be willing to repose in it so improper a 
confidence. As the spirit of party, in different degrees, must be expected to infect 
all political bodies, there will be, no doubt, persons in the national legislature 
willing enough to arraign the measures and criminate the views of the majority. The 
provision for the support of a military force will always be a favorable topic for 
declamation. As often as the question comes forward, the public attention will be 
roused and attracted to the subject, by the party in opposition; and if the majority 
should be really disposed to exceed the proper limits, the community will be 
warned of the danger, and will have an opportunity of taking measures to guard 
against it. Independent of parties in the national legislature itself, as often as the 
period of discussion arrived, the State legislatures, who will always be not only 



cu cm r to u [Jiuuauic u icu il vvuuiu uc pci^cvcicu n i, cu iu uai 101 1 nucu cuui ly u nuuy 1 1 

all the successive variations in a representative body, which biennial elections 
would naturally produce in both houses? Is it presumable, that every man, the 
instant he took his seat in the national Senate or House of Representatives, would 
commence a traitor to his constituents and to his country? Can it be supposed that 
there would not be found one man, discerning enough to detect so atrocious a 
conspiracy, or bold or honest enough to apprise his constituents of their danger? If 
such presumptions can fairly be made, there ought at once to be an end of all 
delegated authority. The people should resolve to recall all the powers they have 
heretofore parted with out of their own hands, and to divide themselves into as 
many States as there are counties, in order that they may be able to manage their 
own concerns in person. 

If such suppositions could even be reasonably made, still the concealment of the 
design, for any duration, would be impracticable. It would be announced, by the 
very circumstance of augmenting the army to so great an extent in time of profound 
peace. What colorable reason could be assigned, in a country so situated, for 
such vast augmentations of the military force? It is impossible that the people 
could be long deceived; and the destruction of the project, and of the projectors, 
would quickly follow the discovery. 



oci luuoiy lkj oui il^i iu uiul ii ii iilcu y iui v^co uuyi II I IKJL LKJ uc laiocu LVJ l^Ut^ll CI ICUUMIUII 

or resist an invasion; and if the defense of the community under such 
circumstances should make it necessary to have an army so numerous as to 
hazard its liberty, this is one of those calamities for which there is neither 
preventative nor cure. It cannot be provided against by any possible form of 
government; it might even result from a simple league offensive and defensive, if it 
should ever be necessary for the confederates or allies to form an army for 
common defense. 

But it is an evil infinitely less likely to attend us in a united than in a disunited state; 
nay, it may be safely asserted that it is an evil altogether unlikely to attend us in the 
latter situation. It is not easy to conceive a possibility that dangers so formidable 
can assail the whole Union, as to demand a force considerable enough to place 
our liberties in the least jeopardy, especially if we take into our view the aid to be 
derived from the militia, which ought always to be counted upon as a valuable and 
powerful auxiliary. But in a state of disunion (as has been fully shown in another 
place), the contrary of this supposition would become not only probable, but 
almost unavoidable. 



L/^I^IIOU WV/IIOIU^I &U 



From the New York Packet. Tuesday, December 25, 1787. 

HAMILTON 

To the People of the State of New York: 

IT HAS been urged, in different shapes, that a Constitution of the kind proposed by 
the convention cannot operate without the aid of a military force to execute its 
laws. This, however, like most other things that have been alleged on that side, 
rests on mere general assertion, unsupported by any precise or intelligible 
designation of the reasons upon which it is founded. As far as I have been able to 
divine the latent meaning of the objectors, it seems to originate in a 
presupposition that the people will be disinclined to the exercise of federal 
authority in any matter of an internal nature. Waiving any exception that might be 
taken to the inaccuracy or inexplicitness of the distinction between internal and 
external, let us inquire what ground there is to presuppose that disinclination in the 
people. Unless we presume at the same time that the powers of the general 



pcii uuuiai yuvcn n i ici no, li ic pi n i^ipcu ui vvi iiui i icaoui 10 cue u icu u ic calci ioiui i ui u ic 

spheres of election will present a greater option, or latitude of choice, to the 
people; that through the medium of the State legislatures which are select bodies 
of men, and which are to appoint the members of the national Senate there is 
reason to expect that this branch will generally be composed with peculiar care 
and judgment; that these circumstances promise greater knowledge and more 
extensive information in the national councils, and that they will be less apt to be 
tainted by the spirit of faction, and more out of the reach of those occasional ill- 
humors, or temporary prejudices and propensities, which, in smaller societies, 
frequently contaminate the public councils, beget injustice and oppression of a 
part of the community, and engender schemes which, though they gratify a 
momentary inclination or desire, terminate in general distress, dissatisfaction, and 
disgust. Several additional reasons of considerable force, to fortify that probability, 
will occur when we come to survey, with a more critical eye, the interior structure of 
the edifice which we are invited to erect. It will be sufficient here to remark, that 
until satisfactory reasons can be assigned to justify an opinion, that the federal 
government is likely to be administered in such a manner as to render it odious or 
contemptible to the people, there can be no reasonable foundation for the 
supposition that the laws of the Union will meet with any greater obstruction from 



Ul LI IC \J\ IIUI I. II LI MO ICIICUIIUII UC JUOL, UICIC IO IC33 UClliyCI Ul ICOIOLCLIIOC IIUIII 

irregular combinations of individuals to the authority of the Confederacy than to 
that of a single member. 

I will, in this place, hazard an observation, which will not be the less just because to 
some it may appear new; which is, that the more the operations of the national 
authority are intermingled in the ordinary exercise of government, the more the 
citizens are accustomed to meet with it in the common occurrences of their 
political life, the more it is familiarized to their sight and to their feelings, the further 
it enters into those objects which touch the most sensible chords and put in motion 
the most active springs of the human heart, the greater will be the probability that it 
will conciliate the respect and attachment of the community. Man is very much a 
creature of habit. A thing that rarely strikes his senses will generally have but little 
influence upon his mind. A government continually at a distance and out of sight 
can hardly be expected to interest the sensations of the people. The inference is, 
that the authority of the Union, and the affections of the citizens towards it, will be 
strengthened, rather than weakened, by its extension to what are called matters of 
internal concern; and will have less occasion to recur to force, in proportion to the 
familiarity and comprehensiveness of its agency. The more it circulates through 
those channels and currents in which the passions of mankind naturally flow, the 



to the individual citizens of the several States, will enable the government to 
employ the ordinary magistracy of each, in the execution of its laws. It is easy to 
perceive that this will tend to destroy, in the common apprehension, all distinction 
between the sources from which they might proceed; and will give the federal 
government the same advantage for securing a due obedience to its authority 
which is enjoyed by the government of each State, in addition to the influence on 
public opinion which will result from the important consideration of its having power 
to call to its assistance and support the resources of the whole Union. It merits 
particular attention in this place, that the laws of the Confederacy, as to the 
ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the 
SUPREME LAW of the land; to the observance of which all officers, legislative, 
executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus 
the legislatures, courts, and magistrates, of the respective members, will be 
incorporated into the operations of the national government AS FAR AS ITS JUST 
AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary 
to the enforcement of its laws.(l) Any man who will pursue, by his own reflections, 
the consequences of this situation, will perceive that there is good ground to 
calculate upon a regular and peaceable execution of the laws of the Union, if its 
powers are administered with a common share of prudence. If we will arbitrarily 



1. The sophistry which has been employed to show that this will tend to the 
destruction of the State governments, will, in its will, in its proper place, be fully 
detected. 



FEDERALIST No. 28. The Same Subject 

Continued (The Idea of Restraining the 

Legislative Authority in Regard to the Common 

Defense Considered) 

For the Independent Journal. Wednesday, December 26, 

1787 



omy aamissmie principle ot repuoncan government;, nas no piace out mine 
reveries of those political doctors whose sagacity disdains the admonitions of 
experimental instruction. 

Should such emergencies at any time happen under the national government, 
there could be no remedy but force. The means to be employed must be 
proportioned to the extent of the mischief. If it should be a slight commotion in a 
small part of a State, the militia of the residue would be adequate to its 
suppression; and the national presumption is that they would be ready to do their 
duty. An insurrection, whatever maybe its immediate cause, eventually endangers 
all government. Regard to the public peace, if not to the rights of the Union, would 
engage the citizens to whom the contagion had not communicated itself to oppose 
the insurgents; and if the general government should be found in practice 
conducive to the prosperity and felicity of the people, it were irrational to believe 
that they would be disinclined to its support. 

If, on the contrary, the insurrection should pervade a whole State, or a principal 
part of it, the employment of a different kind of force might become unavoidable. It 
appears that Massachusetts found it necessary to raise troops for repressing the 
disorders within that State; that Pennsylvania, from the mere apprehension of 



proposed Constitution what applies with tenfold weight to the plan for which they 
contend; and what, as far as it has any foundation in truth, is an inevitable 
consequence of civil society upon an enlarged scale? Who would not prefer that 
possibility to the unceasing agitations and frequent revolutions which are the 
continual scourges of petty republics? 

Let us pursue this examination in another light. Suppose, in lieu of one general 
system, two, or three, or even four Confederacies were to be formed, would not 
the same difficulty oppose itself to the operations of either of these 
Confederacies? Would not each of them be exposed to the same casualties; and 
when these happened, be obliged to have recourse to the same expedients for 
upholding its authority which are objected to in a government for all the States? 
Would the militia, in this supposition, be more ready or more able to support the 
federal authority than in the case of a general union? All candid and intelligent men 
must, upon due consideration, acknowledge that the principle of the objection is 
equally applicable to either of the two cases; and that whether we have one 
government for all the States, or different governments for different parcels of 
them, or even if there should be an entire separation of the States, there might 
sometimes be a necessity to make use of a force constituted differently from the 



resource left but in the exertion of that original right of self-defense which is 
paramount to all positive forms of government, and which against the usurpations 
of the national rulers, may be exerted with infinitely better prospect of success than 
against those of the rulers of an individual state. In a single state, if the persons 
intrusted with supreme power become usurpers, the different parcels, 
subdivisions, or districts of which it consists, having no distinct government in 
each, can take no regular measures for defense. The citizens must rush 
tumultuously to arms, without concert, without system, without resource; except in 
their courage and despair. The usurpers, clothed with the forms of legal authority, 
can too often crush the opposition in embryo. The smaller the extent of the territory, 
the more difficult will it be for the people to form a regular or systematic plan of 
opposition, and the more easy will it be to defeat their early efforts. Intelligence can 
be more speedily obtained of their preparations and movements, and the military 
force in the possession of the usurpers can be more rapidly directed against the 
part where the opposition has begun. In this situation there must be a peculiar 
coincidence of circumstances to insure success to the popular resistance. 

The obstacles to usurpation and the facilities of resistance increase with the 
increased extent of the state, provided the citizens understand their rights and are 



be too highly prized! 

It may safely be received as an axiom in our political system, that the State 
governments will, in all possible contingencies, afford complete security against 
invasions of the public liberty by the national authority. Projects of usurpation 
cannot be masked under pretenses so likely to escape the penetration of select 
bodies of men, as of the people at large. The legislatures will have better means of 
information. They can discover the danger at a distance; and possessing all the 
organs of civil power, and the confidence of the people, they can at once adopt a 
regular plan of opposition, in which they can combine all the resources of the 
community. They can readily communicate with each other in the different States, 
and unite their common forces for the protection of their common liberty. 

The great extent of the country is a further security. We have already experienced 
its utility against the attacks of a foreign power. And it would have precisely the 
same effect against the enterprises of ambitious rulers in the national councils. If 
the federal army should be able to quell the resistance of one State, the distant 
States would have it in their power to make head with fresh forces. The 
advantages obtained in one place must be abandoned to subdue the opposition 
in others; and the moment the part which had been reduced to submission was left 



uui Diucicu ao a. uiacaoc, iui vvi iiui i u icic ucu mc iuui iu i iu luic n i li ic icouuiuca ui 



argument and reasoning. 

PUBLIUS 
1. Its full efficacy will be examined hereafter. 



FEDERALIST No. 29. Concerning the Militia 

From the New York Packet. Wednesday, January 9, 1788 

HAMILTON 
To the People of the State of New York: 



can only be accomplished by confiding the regulation of the militia to the direction 
of the national authority. It is, therefore, with the most evident propriety, that the 
plan of the convention proposes to empower the Union "to provide for organizing, 
arming, and disciplining the militia, and for governing such part of them as maybe 
employed in the service of the United States, RESERVING TO THE STATES 
RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE 
AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE 
PRESCRIBED BY CONGRESS." 

Of the different grounds which have been taken in opposition to the plan of the 
convention, there is none that was so little to have been expected, or is so 
untenable in itself, as the one from which this particular provision has been 
attacked. If a well-regulated militia be the most natural defense of a free country, it 
ought certainly to be under the regulation and at the disposal of that body which is 
constituted the guardian of the national security. If standing armies are dangerous 
to liberty, an efficacious power over the militia, in the body to whose care the 
protection of the State is committed, ought, as far as possible, to take away the 
inducement and the pretext to such unfriendly institutions. If the federal government 
can command the aid of the militia in those emergencies which call for the military 



uujcuuuiio vviiiuii nave a|j|jcaicu, ai iu oui i icm i ico even nuin u ic ocu i ic ^ucuiei, iiul 

much calculated to inspire a very favorable opinion of the sincerity or fair dealing 
of their authors. The same persons who tell us in one breath, that the powers of the 
federal government will be despotic and unlimited, inform us in the next, that it has 
not authority sufficient even to call out the POSSE COMITATUS. The latter, 
fortunately, is as much short of the truth as the former exceeds it. It would be as 
absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to 
execute its declared powers, would include that of requiring the assistance of the 
citizens to the officers who may be intrusted with the execution of those laws, as it 
would be to believe, that a right to enact laws necessary and proper for the 
imposition and collection of taxes would involve that of varying the rules of descent 
and of the alienation of landed property, or of abolishing the trial by jury in cases 
relating to it. It being therefore evident that the supposition of a want of power to 
require the aid of the POSSE COMITATUS is entirely destitute of color, it will 
follow, that the conclusion which has been drawn from it, in its application to the 
authority of the federal government over the militia, is as uncandid as it is illogical. 
What reason could there be to infer, that force was intended to be the sole 
instrument of authority, merely because there is a power to make use of it when 
necessary? What shall we think of the motives which could induce men of sense to 



oicuc ui i li ic ouujcui ui a iiiiiuia. coiauiioi n i ici il, i oi iuuiu i iuiu lu iiiiii, ii i ouuoiai iuc, 

the following discourse: 

"The project of disciplining all the militia of the United States is as futile as it would 
be injurious, if it were capable of being carried into execution. A tolerable 
expertness in military movements is a business that requires time and practice. It 
is not a day, or even a week, that will suffice for the attainment of it. To oblige the 
great body of the yeomanry, and of the other classes of the citizens, to be under 
arms for the purpose of going through military exercises and evolutions, as often 
as might be necessary to acquire the degree of perfection which would entitle 
them to the character of a well-regulated militia, would be a real grievance to the 
people, and a serious public inconvenience and loss. It would form an annual 
deduction from the productive labor of the country, to an amount which, calculating 
upon the present numbers of the people, would not fall far short of the whole 
expense of the civil establishments of all the States. To attempt a thing which 
would abridge the mass of labor and industry to so considerable an extent, would 
be unwise: and the experiment, if made, could not succeed, because it would not 
long be endured. Little more can reasonably be aimed at, with respect to the 
people at large, than to have them properly armed and equipped; and in order to 
see that this be not neglected, it will be necessary to assemble them once or twice 



uunyc u ic yuvcn n i ici il lu iui hi cu i cu 1 1 ly ui any 1 1 iciy i muuc u icu ai 1 1 ly ucu i i icvci uc 

formidable to the liberties of the people while there is a large body of citizens, little, 
if at all, inferior to them in discipline and the use of arms, who stand ready to 
defend their own rights and those of their fellow-citizens. This appears to me the 
only substitute that can be devised for a standing army, and the best possible 
security against it, if it should exist." 

Thus differently from the adversaries of the proposed Constitution should I reason 
on the same subject, deducing arguments of safety from the very sources which 
they represent as fraught with danger and perdition. But how the national 
legislature may reason on the point, is a thing which neither they nor I can foresee. 

There is something so far-fetched and so extravagant in the idea of danger to 
liberty from the militia, that one is at a loss whether to treat it with gravity or with 
raillery; whether to consider it as a mere trial of skill, like the paradoxes of 
rhetoricians; as a disingenuous artifice to instil prejudices at any price; or as the 
serious offspring of political fanaticism. Where in the name of common-sense, are 
our fears to end if we may not trust our sons, our brothers, our neighbors, our 
fellow-citizens? What shadow of danger can there be from men who are daily 
mingling with the rest of their countrymen and who participate with them in the 



ii i iciLjii ic u iai lie 10 pciu^niy ouiiic iii-vviiucii icuc ui luincuiuc;, vvi iiui i n Dicau ui 

natural and agreeable images, exhibits to the mind nothing but frightful and 
distorted shapesA — 

"Gorgons, hydras, and chimeras dire"; 

discoloring and disfiguring whatever it represents, and transforming everything it 
touches into a monster. 

A sample of this is to be observed in the exaggerated and improbable 
suggestions which have taken place respecting the power of calling for the 
services of the militia. That of New Hampshire is to be marched to Georgia, of 
Georgia to New Hampshire, of New York to Kentucky, and of Kentucky to Lake 
Champlain. Nay, the debts due to the French and Dutch are to be paid in 
militiamen instead of louis d'ors and ducats. At one moment there is to be a large 
army to lay prostrate the liberties of the people; at another moment the militia of 
Virginia are to be dragged from their homes five or six hundred miles, to tame the 
republican contumacy of Massachusetts; and that of Massachusetts is to be 
transported an equal distance to subdue the refractory haughtiness of the 
aristocratic Virginians. Do the persons who rave at this rate imagine that their art 



nauuiir lju li icy ucyni uy cauiuiilj u ic ucicoiauuii ui u ic vciy n ion ui i ici no ui uicii 

intended usurpations? Do they usually commence their career by wanton and 
disgustful acts of power, calculated to answer no end, but to draw upon 
themselves universal hatred and execration? Are suppositions of this sort the 
sober admonitions of discerning patriots to a discerning people? Or are they the 
inflammatory ravings of incendiaries or distempered enthusiasts? If we were even 
to suppose the national rulers actuated by the most ungovernable ambition, it is 
impossible to believe that they would employ such preposterous means to 
accomplish their designs. 

In times of insurrection, or invasion, it would be natural and proper that the militia of 
a neighboring State should be marched into another, to resist a common enemy, 
or to guard the republic against the violence of faction or sedition. This was 
frequently the case, in respect to the first object, in the course of the late war; and 
this mutual succor is, indeed, a principal end of our political association. If the 
power of affording it be placed under the direction of the Union, there will be no 
danger of a supine and listless inattention to the dangers of a neighbor, till its near 
approach had superadded the incitements of self-preservation to the too feeble 
impulses of duty and sympathy. 



HAMILTON 

To the People of the State of New York: 

IT HAS been already observed that the federal government ought to possess the 
power of providing for the support of the national forces; in which proposition was 
intended to be included the expense of raising troops, of building and equipping 
fleets, and all other expenses in anywise connected with military arrangements 
and operations. But these are not the only objects to which the jurisdiction of the 
Union, in respect to revenue, must necessarily be empowered to extend. It must 
embrace a provision for the support of the national civil list; for the payment of the 
national debts contracted, or that may be contracted; and, in general, for all those 
matters which will call for disbursements out of the national treasury. The 
conclusion is, that there must be interwoven, in the frame of the government, a 
general power of taxation, in one shape or another. 

Money is, with propriety, considered as the vital principle of the body politic; as 
that which sustains its life and motion, and enables it to perform its most essential 



|jiiia.yc 11 ic pcupic vviuiuul inciuy, aiiu, 111 luiii, ^ljuccz_c^ uul ui liiciii uic ouiid ui 

which he stands in need, to satisfy his own exigencies and those of the state. In 
America, from a like cause, the government of the Union has gradually dwindled 
into a state of decay, approaching nearly to annihilation. Who can doubt, that the 
happiness of the people in both countries would be promoted by competent 
authorities in the proper hands, to provide the revenues which the necessities of 
the public might require? 

The present Confederation, feeble as it is intended to repose in the United States, 
an unlimited power of providing for the pecuniary wants of the Union. But 
proceeding upon an erroneous principle, it has been done in such a manner as 
entirely to have frustrated the intention. Congress, by the articles which compose 
that compact (as has already been stated), are authorized to ascertain and call for 
any sums of money necessary, in their judgment, to the service of the United 
States; and their requisitions, if conformable to the rule of apportionment, are in 
every constitutional sense obligatory upon the States. These have no right to 
question the propriety of the demand; no discretion beyond that of devising the 
ways and means of furnishing the sums demanded. But though this be strictly and 
truly the case; though the assumption of such a right would be an infringement of 
the articles of Union; though it may seldom or never have been avowedly claimed, 



uui li icil ui pci 1 1 iillii iy li ic iidLiuiidi yuvcn n i ici il lu lai^c no uvvi i icvciiuccj uy li ic 

ordinary methods of taxation authorized in every well-ordered constitution of civil 
government? Ingenious men may declaim with plausibility on any subject; but no 
human ingenuity can point out any other expedient to rescue us from the 
inconveniences and embarrassments naturally resulting from defective supplies of 
the public treasury. 

The more intelligent adversaries of the new Constitution admit the force of this 
reasoning; but they qualify their admission by a distinction between what they call 
INTERNAL and EXTERNAL taxation. The former they would reserve to the State 
governments; the latter, which they explain into commercial imposts, or rather 
duties on imported articles, they declare themselves willing to concede to the 
federal head. This distinction, however, would violate the maxim of good sense 
and sound policy, which dictates that every POWER ought to be in proportion to its 
OBJECT; and would still leave the general government in a kind of tutelage to the 
State governments, inconsistent with every idea of vigor or efficiency. Who can 
pretend that commercial imposts are, or would be, alone equal to the present and 
future exigencies of the Union? Taking into the account the existing debt, foreign 
and domestic, upon any plan of extinguishment which a man moderately 
impressed with the importance of public justice and public credit could approve, in 



u ic ui ic i icii iu lu ci^t\i luvvicuyc uiai u no oyoicriii ucuniui uc ucliciiucu ujjui i, a\ iu ui i 

the other hand to depend upon it for every thing beyond a certain limit. Those who 
have carefully attended to its vices and deformities as they have been exhibited by 
experience or delineated in the course of these papers, must feel invincible 
repugnancy to trusting the national interests in any degree to its operation. Its 
inevitable tendency, whenever it is brought into activity, must be to enfeeble the 
Union, and sow the seeds of discord and contention between the federal head and 
its members, and between the members themselves. Can it be expected that the 
deficiencies would be better supplied in this mode than the total wants of the 
Union have heretofore been supplied in the same mode? It ought to be recollected 
that if less will be required from the States, they will have proportionablyless 
means to answer the demand. If the opinions of those who contend for the 
distinction which has been mentioned were to be received as evidence of truth, 
one would be led to conclude that there was some known point in the economy of 
national affairs at which it would be safe to stop and to say: Thus far the ends of 
public happiness will be promoted by supplying the wants of government, and all 
beyond this is unworthy of our care or anxiety. How is it possible that a government 
half supplied and always necessitous, can fulfill the purposes of its institution, can 
provide for the security, advance the prosperity, or support the reputation of the 



uiiuui i ioicu iucu, a vvcu uica.i\o uui. vviiai vvuuiu uc li ic piuuciuic uuiiuuului u ic 

government in such an emergency? Taught by experience that proper 
dependence could not be placed on the success of requisitions, unable by its own 
authority to lay hold of fresh resources, and urged by considerations of national 
danger, would it not be driven to the expedient of diverting the funds already 
appropriated from their proper objects to the defense of the State? It is not easy to 
see how a step of this kind could be avoided; and if it should be taken, it is evident 
that it would prove the destruction of public credit at the very moment that it was 
becoming essential to the public safety. To imagine that at such a crisis credit 
might be dispensed with, would be the extreme of infatuation. In the modern 
system of war, nations the most wealthy are obliged to have recourse to large 
loans. A country so little opulent as ours must feel this necessity in a much stronger 
degree. But who would lend to a government that prefaced its overtures for 
borrowing by an act which demonstrated that no reliance could be placed on the 
steadiness of its measures for paying? The loans it might be able to procure 
would be as limited in their extent as burdensome in their conditions. They would 
be made upon the same principles that usurers commonly lend to bankrupt and 
fraudulent debtors, with a sparing hand and at enormous premiums. 

It may perhaps be imagined that, from the scantiness of the resources of the 



iiiuol nocrii ucpci iu upui i uiiiiccii uuici yuvcn n i ici no iui li ic mcaiD ui luiniiii ly no 

contracts, when once its situation is clearly understood, would require a degree of 
credulity not often to be met with in the pecuniary transactions of mankind, and little 
reconcilable with the usual sharp-sightedness of avarice. 

Reflections of this kind may have trifling weight with men who hope to see realized 
in America the halcyon scenes of the poetic or fabulous age; but to those who 
believe we are likely to experience a common portion of the vicissitudes and 
calamities which have fallen to the lot of other nations, they must appear entitled to 
serious attention. Such men must behold the actual situation of their country with 
painful solicitude, and deprecate the evils which ambition or revenge might, with 
too much facility, inflict upon it. 

PUBLIUS 



IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, 
upon which all subsequent reasonings must depend. These contain an internal 
evidence which, antecedent to all reflection or combination, commands the assent 
of the mind. Where it produces not this effect, it must proceed either from some 
defect or disorder in the organs of perception, or from the influence of some strong 
interest, or passion, or prejudice. Of this nature are the maxims in geometry, that 
"the whole is greater than its part; things equal to the same are equal to one 
another; two straight lines cannot enclose a space; and all right angles are equal 
to each other." Of the same nature are these other maxims in ethics and politics, 
that there cannot be an effect without a cause; that the means ought to be 
proportioned to the end; that every power ought to be commensurate with its 
object; that there ought to be no limitation of a power destined to effect a purpose 
which is itself incapable of limitation. And there are other truths in the two latter 
sciences which, if they cannot pretend to rank in the class of axioms, are yet such 
direct inferences from them, and so obvious in themselves, and so agreeable to 
the natural and unsophisticated dictates of common-sense, that they challenge the 
assent of a sound and unbiased mind, with a degree of force and conviction 
almost equally irresistible. 



But in the sciences of morals and politics, men are found far less tractable. To a 
certain degree, it is right and useful that this should be the case. Caution and 
investigation are a necessary armor against error and imposition. But this 
untractableness may be carried too far, and may degenerate into obstinacy, 
perverseness, or disingenuity. Though it cannot be pretended that the principles of 
moral and political knowledge have, in general, the same degree of certainty with 
those of the mathematics, yet they have much better claims in this respect than, to 
judge from the conduct of men in particular situations, we should be disposed to 
allow them. The obscurity is much oftener in the passions and prejudices of the 
reasoner than in the subject. Men, upon too many occasions, do not give their own 
understandings fair play; but, yielding to some untoward bias, they entangle 
themselves in words and confound themselves in subtleties. 

How else could it happen (if we admit the objectors to be sincere in their 
opposition), that positions so clear as those which manifest the necessity of a 
general power of taxation in the government of the Union, should have to encounter 
any adversaries among men of discernment? Though these positions have been 
elsewhere fully stated, they will perhaps not be improperly recapitulated in this 



resources of the community. 

As revenue is the essential engine by which the means of answering the national 
exigencies must be procured, the power of procuring that article in its full extent 
must necessarily be comprehended in that of providing for those exigencies. 

As theory and practice conspire to prove that the power of procuring revenue is 
unavailing when exercised over the States in their collective capacities, the federal 
government must of necessity be invested with an unqualified power of taxation in 
the ordinary modes. 

Did not experience evince the contrary, it would be natural to conclude that the 
propriety of a general power of taxation in the national government might safely be 
permitted to rest on the evidence of these propositions, unassisted by any 
additional arguments or illustrations. But we find, in fact, that the antagonists of the 
proposed Constitution, so far from acquiescing in their justness or truth, seem to 
make their principal and most zealous effort against this part of the plan. It may 
therefore be satisfactory to analyze the arguments with which they combat it. 

Those of them which have been most labored with that view, seem in substance to 



as it is to have power to pass all laws that may be NECESSARY for carrying into 
execution the authorities with which it is proposed to vest it, the national 
government might at any time abolish the taxes imposed for State objects upon 
the pretense of an interference with its own. It might allege a necessity of doing 
this in order to give efficacy to the national revenues. And thus all the resources of 
taxation might by degrees become the subjects of federal monopoly, to the entire 
exclusion and destruction of the State governments." 

This mode of reasoning appears sometimes to turn upon the supposition of 
usurpation in the national government; at other times it seems to be designed only 
as a deduction from the constitutional operation of its intended powers. It is only in 
the latter light that it can be admitted to have any pretensions to fairness. The 
moment we launch into conjectures about the usurpations of the federal 
government, we get into an unfathomable abyss, and fairly put ourselves out of the 
reach of all reasoning. Imagination may range at pleasure till it gets bewildered 
amidst the labyrinths of an enchanted castle, and knows not on which side to turn 
to extricate itself from the perplexities into which it has so rashly adventured. 
Whatever may be the limits or modifications of the powers of the Union, it is easy 
to imagine an endless train of possible dangers; and by indulging an excess of 



It should not be forgotten that a disposition in the State governments to encroach 
upon the rights of the Union is quite as probable as a disposition in the Union to 
encroach upon the rights of the State governments. What side would be likely to 
prevail in such a conflict, must depend on the means which the contending parties 
could employ toward insuring success. As in republics strength is always on the 
side of the people, and as there are weighty reasons to induce a belief that the 
State governments will commonly possess most influence over them, the natural 
conclusion is that such contests will be most apt to end to the disadvantage of the 
Union; and that there is greater probability of encroachments by the members 
upon the federal head, than by the federal head upon the members. But it is 
evident that all conjectures of this kind must be extremely vague and fallible: and 
that it is by far the safest course to lay them altogether aside, and to confine our 
attention wholly to the nature and extent of the powers as they are delineated in the 
Constitution. Every thing beyond this must be left to the prudence and firmness of 
the people; who, as they will hold the scales in their own hands, it is to be hoped, 
will always take care to preserve the constitutional equilibrium between the 
general and the State governments. Upon this ground, which is evidently the true 
one, it will not be difficult to obviate the objections which have been made to an 



Taxation) 

From The Independent Journal. Wednesday, January 2, 

1788. 

HAMILTON 

To the People of the State of New York: 

ALTHOUGH I am of opinion that there would be no real danger of the 
consequences which seem to be apprehended to the State governments from a 
power in the Union to control them in the levies of money, because I am persuaded 
that the sense of the people, the extreme hazard of provoking the resentments of 
the State governments, and a conviction of the utility and necessity of local 
administrations for local purposes, would be a complete barrier against the 
oppressive use of such a power; yet I am willing here to allow, in its full extent, the 
justness of the reasoning which requires that the individual States should possess 
an independent and uncontrollable authority to raise their own revenues for the 



vvuuiu uicciiiy icicuii cui u ic iiyiuo ui ^uvciciyiny vviiil.ii u icy uciuic iiau, cu iu vviiil.ii 

were not, by that act, EXCLUSIVELY delegated to the United States. This 
exclusive delegation, or rather this alienation, of State sovereignty, would only exist 
in three cases: where the Constitution in express terms granted an exclusive 
authority to the Union; where it granted in one instance an authority to the Union, 
and in another prohibited the States from exercising the like authority; and where it 
granted an authority to the Union, to which a similar authority in the States would 
be absolutely and totally CONTRADICTORY and REPUGNANT. I use these terms 
to distinguish this last case from another which might appear to resemble it, but 
which would, in fact, be essentially different; I mean where the exercise of a 
concurrent jurisdiction might be productive of occasional interferences in the 
POLICY of any branch of administration, but would not imply any direct 
contradiction or repugnancy in point of constitutional authority. These three cases 
of exclusive jurisdiction in the federal government may be exemplified by the 
following instances: The last clause but one in the eighth section of the first article 
provides expressly that Congress shall exercise "EXCLUSIVE LEGISLATION" 
over the district to be appropriated as the seat of government. This answers to the 
first case. The first clause of the same section empowers Congress "to lay and 
collect taxes, duties, imposts and excises"; and the second clause of the tenth 



RULE. 

A case which may perhaps be thought to resemble the latter, but which is in fact 
widely different, affects the question immediately under consideration. I mean the 
power of imposing taxes on all articles other than exports and imports. This, I 
contend, is manifestly a concurrent and coequal authority in the United States and 
in the individual States. There is plainly no expression in the granting clause which 
makes that power EXCLUSIVE in the Union. There is no independent clause or 
sentence which prohibits the States from exercising it. So far is this from being the 
case, that a plain and conclusive argument to the contrary is to be deduced from 
the restraint laid upon the States in relation to duties on imports and exports. This 
restriction implies an admission that, if it were not inserted, the States would 
possess the power it excludes; and it implies a further admission, that as to all 
other taxes, the authority of the States remains undiminished. In any other view it 
would be both unnecessary and dangerous; it would be unnecessary, because if 
the grant to the Union of the power of laying such duties implied the exclusion of 
the States, or even their subordination in this particular, there could be no need of 
such a restriction; it would be dangerous, because the introduction of it leads 
directly to the conclusion which has been mentioned, and which, if the reasoning of 



the sense last mentioned, the Constitution would then be made to introduce a 
formal provision for the sake of a very absurd conclusion; which is, that the States, 
WITH THE CONSENT of the national legislature, might tax imports and exports; 
and that they might tax every other article, UNLESS CONTROLLED by the same 
body. If this was the intention, why not leave it, in the first instance, to what is 
alleged to be the natural operation of the original clause, conferring a general 
power of taxation upon the Union? It is evident that this could not have been the 
intention, and that it will not bear a construction of the kind. 

As to a supposition of repugnancy between the power of taxation in the States and 
in the Union, it cannot be supported in that sense which would be requisite to work 
an exclusion of the States. It is, indeed, possible that a tax might be laid on a 
particular article by a State which might render it INEXPEDIENT that thus a further 
tax should be laid on the same article by the Union; but it would not imply a 
constitutional inability to impose a further tax. The quantity of the imposition, the 
expediency or inexpediency of an increase on either side, would be mutually 
questions of prudence; but there would be involved no direct contradiction of 
power. The particular policy of the national and of the State systems of finance 
might now and then not exactly coincide, and might require reciprocal 



li icu li ic nr\c auuiuiiiicd 01 iuuiu icoiuc 111 u ic oiaica, lu nidcii ncLjauvc uauoco 

prohibiting the exercise of them by the States. The tenth section of the first article 
consists altogether of such provisions. This circumstance is a clear indication of 
the sense of the convention, and furnishes a rule of interpretation out of the body of 
the act, which justifies the position I have advanced and refutes every hypothesis 
to the contrary. 

PUBLIUS 



FEDERALIST No. 33. The Same Subject 
Continued (Concerning the General Power of 

Taxation) 

From The Independent Journal. Wednesday, January 2, 



VsLAI I VII IU I I ILV-/ V-/\V- \_/L^U Ul I II II I W V V I I \\— » KJ V LI IUL \-/ \_/ I lv-» LI LULI KJ I I VUOIUU III LI IV- 

government of the United States, or in any department or officer thereof"; and the 
second clause of the sixth article declares, "that the Constitution and the laws of 
the United States made IN PURSUANCE THEREOF, and the treaties made by 
their authority shall be the SUPREME LAW of the land, anything in the constitution 
or laws of any State to the contrary notwithstanding." 

These two clauses have been the source of much virulent invective and petulant 
declamation against the proposed Constitution. They have been held up to the 
people in all the exaggerated colors of misrepresentation as the pernicious 
engines by which their local governments were to be destroyed and their liberties 
exterminated; as the hideous monster whose devouring jaws would spare neither 
sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may 
appear, after all this clamor, to those who may not have happened to contemplate 
them in the same light, it may be affirmed with perfect confidence that the 
constitutional operation of the intended government would be precisely the same, 
if these clauses were entirely obliterated, as if they were repeated in every article. 
They are only declaratory of a truth which would have resulted by necessary and 
unavoidable implication from the very act of constituting a federal government, and 
vesting it with certain specified powers. This is so clear a proposition, that 



true nature of the clause complained of. It conducts us to this palpable truth, that a 
power to lay and collect taxes must be a power to pass all laws NECESSARY and 
PROPER for the execution of that power; and what does the unfortunate and 
calumniated provision in question do more than declare the same truth, to wit, that 
the national legislature, to whom the power of laying and collecting taxes had been 
previously given, might, in the execution of that power, pass all laws NECESSARY 
and PROPER to carry it into effect? I have applied these observations thus 
particularly to the power of taxation, because it is the immediate subject under 
consideration, and because it is the most important of the authorities proposed to 
be conferred upon the Union. But the same process will lead to the same result, in 
relation to all other powers declared in the Constitution. And it is EXPRESSLY to 
execute these powers that the sweeping clause, as it has been affectedly called, 
authorizes the national legislature to pass all NECESSARY and PROPER laws. If 
there is any thing exceptionable, it must be sought for in the specific powers upon 
which this general declaration is predicated. The declaration itself, though it may 
be chargeable with tautology or redundancy, is at least perfectly harmless. 

But SUSPICION may ask, Why then was it introduced? The answer is, that it could 
only have been done for greater caution, and to guard against all cavilling 



ui U ic lavvo lu uc [jaoocru iui cacuulii ilj li ic [juvvcio ui li ic uiiiuii.' icliiovvci, idol, uiai 

this question arises as well and as fully upon the simple grant of those powers as 
upon the declaratory clause; and I answer, in the second place, that the national 
government, like every other, must judge, in the first instance, of the proper 
exercise of its powers, and its constituents in the last. If the federal government 
should overpass the just bounds of its authority and make a tyrannical use of its 
powers, the people, whose creature it is, must appeal to the standard they have 
formed, and take such measures to redress the injury done to the Constitution as 
the exigency may suggest and prudence justify. The propriety of a law, in a 
constitutional light, must always be determined by the nature of the powers upon 
which it is founded. Suppose, by some forced constructions of its authority (which, 
indeed, cannot easily be imagined), the Federal legislature should attempt to vary 
the law of descent in any State, would it not be evident that, in making such an 
attempt, it had exceeded its jurisdiction, and infringed upon that of the State? 
Suppose, again, that upon the pretense of an interference with its revenues, it 
should undertake to abrogate a landtax imposed by the authority of a State; would 
it not be equally evident that this was an invasion of that concurrent jurisdicti on in 
respect to this species of tax, which its Constitution plainly supposes to exist in the 
State governments? If there ever should be a doubt on this head, the credit of it will 



iciiyci jjuiiuucu ouuicriy, u ic lavvo vviiil.ii u ic iciuci i i lay ci laui, puioucu u lu li ic jjuvvctio 

intrusted to it by its constitution, must necessarily be supreme over those 
societies, and the individuals of whom they are composed. It would otherwise be a 
mere treaty, dependent on the good faith of the parties, and not a government, 
which is only another word for POLITICAL POWER AND SUPREMACY. But it will 
not follow from this doctrine that acts of the large society which are NOT 
PURSUANT to its constitutional powers, but which are invasions of the residuary 
authorities of the smaller societies, will become the supreme law of the land. 
These will be merely acts of usurpation, and will deserve to be treated as such. 
Hence we perceive that the clause which declares the supremacy of the laws of 
the Union, like the one we have just before considered, only declares a truth, which 
flows immediately and necessarily from the institution of a federal government. It 
will not, I presume, have escaped observation, that it EXPRESSLY confines this 
supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention 
merely as an instance of caution in the convention; since that limitation would have 
been to be understood, though it had not been expressed. 

Though a law, therefore, laying a tax for the use of the United States would be 
supreme in its nature, and could not legally be opposed or controlled, yet a law for 
abrogating or preventing the collection of a tax laid by the authority of the State, 



exports. It will be shown in the next paper that this CONCURRENT JURISDICTION 
in the article of taxation was the only admissible substitute for an entire 
subordination, in respect to this branch of power, of the State authority to that of 
the Union. 

PUBLIUS 



FEDERALIST No. 34. The Same Subject 
Continued (Concerning the General Power of 

Taxation) 

From The Independent Journal. Saturday, January 5, 1788. 



tne inconsiaeraoie snare ot tne punnc expenses Tor wmcn it win Tan to tne lot OTtne 
State governments to provide. 

To argue upon abstract principles that this co-ordinate authority cannot exist, is to 
set up supposition and theory against fact and reality. However proper such 
reasonings might be to show that a thing OUGHT NOT TO EXIST, they are wholly 
to be rejected when they are made use of to prove that it does not exist contrary to 
the evidence of the fact itself. It is well known that in the Roman republic the 
legislative authority, in the last resort, resided for ages in two different political 
bodies not as branches of the same legislature, but as distinct and independent 
legislatures, in each of which an opposite interest prevailed: in one the patrician; in 
the other, the plebian. Many arguments might have been adduced to prove the 
unfitness of two such seemingly contradictory authorities, each having power to 
ANNUL or REPEAL the acts of the other. But a man would have been regarded as 
frantic who should have attempted at Rome to disprove their existence. It will be 
readily understood that I allude to the COMITIA CENTURIATA and the COMITIA 
TRIBUTA. The former, in which the people voted by centuries, was so arranged as 
to give a superiority to the patrician interest; in the latter, in which numbers 
prevailed, the plebian interest had an entire predominancy. And yet these two 



to advert to the proportion between the objects that will require a federal provision 
in respect to revenue, and those which will require a State provision. We shall 
discover that the former are altogether unlimited, and that the latter are 
circumscribed within very moderate bounds. In pursuing this inquiry, we must bear 
in mind that we are not to confine our view to the present period, but to look 
forward to remote futurity. Constitutions of civil government are not to be framed 
upon a calculation of existing exigencies, but upon a combination of these with the 
probable exigencies of ages, according to the natural and tried course of human 
affairs. Nothing, therefore, can be more fallacious than to infer the extent of any 
power, proper to be lodged in the national government, from an estimate of its 
immediate necessities. There ought to be a CAPACITY to provide for future 
contingencies as they may happen; and as these are illimitable in their nature, it is 
impossible safely to limit that capacity. It is true, perhaps, that a computation might 
be made with sufficient accuracy to answer the purpose of the quantity of revenue 
requisite to discharge the subsisting engagements of the Union, and to maintain 
those establishments which, for some time to come, would suffice in time of 
peace. But would it be wise, or would it not rather be the extreme of folly, to stop at 
this point, and to leave the government intrusted with the care of the national 
defense in a state of absolute incapacity to provide for the protection of the 



support of a navy and of naval wars would involve contingencies that must baffle all 
the efforts of political arithmetic. 

Admitting that we ought to try the novel and absurd experiment in politics of tying 
up the hands of government from offensive war founded upon reasons of state, yet 
certainly we ought not to disable it from guarding the community against the 
ambition or enmity of other nations. A cloud has been for some time hanging over 
the European world. If it should break forth into a storm, who can insure us that in 
its progress a part of its fury would not be spent upon us? No reasonable man 
would hastily pronounce that we are entirely out of its reach. Or if the combustible 
materials that now seem to be collecting should be dissipated without coming to 
maturity, or if a flame should be kindled without extending to us, what security can 
we have that our tranquillity will long remain undisturbed from some other cause or 
from some other quarter? Let us recollect that peace or war will not always be left 
to our option; that however moderate or unambitious we maybe, we cannot count 
upon the moderation, or hope to extinguish the ambition of others. Who could have 
imagined at the conclusion of the last war that France and Britain, wearied and 
exhausted as they both were, would so soon have looked with so hostile an aspect 
upon each other? To judge from the history of mankind, we shall be compelled to 



ui no icyioiauvc, cacuuuvc, ai iu juuiuiai ucpai li i ici ii^, vviui inch uiiiciciil 

appendages, and to the encouragement of agriculture and manufactures (which 
will comprehend almost all the objects of state expenditure), are insignificant in 
comparison with those which relate to the national defense. 

In the kingdom of Great Britain, where all the ostentatious apparatus of monarchy 
is to be provided for, not above a fifteenth part of the annual income of the nation 
is appropriated to the class of expenses last mentioned; the other fourteen 
fifteenths are absorbed in the payment of the interest of debts contracted for 
carrying on the wars in which that country has been engaged, and in the 
maintenance of fleets and armies. If, on the one hand, it should be observed that 
the expenses incurred in the prosecution of the ambitious enterprises and 
vainglorious pursuits of a monarchy are not a proper standard by which to judge of 
those which might be necessary in a republic, it ought, on the other hand, to be 
remarked that there should be as great a disproportion between the profusion and 
extravagance of a wealthy kingdom in its domestic administration, and the frugality 
and economy which in that particular become the modest simplicity of republican 
government. If we balance a proper deduction from one side against that which it 
is supposed ought to be made from the other, the proportion may still be 
considered as holding good. 



u ic luicu diiiuuiiL 111 cvciy oicuc uuyin lu icui uui loiuciauiy snuii ui ivvu i iui iui cu 

thousand pounds. 

In framing a government for posterity as well as ourselves, we ought, in those 
provisions which are designed to be permanent, to calculate, not on temporary, 
but on permanent causes of expense. If this principle be a just one our attention 
would be directed to a provision in favor of the State governments for an annual 
sum of about two hundred thousand pounds; while the exigencies of the Union 
could be susceptible of no limits, even in imagination. In this view of the subject, by 
what logic can it be maintained that the local governments ought to command, in 
perpetuity, an EXCLUSIVE source of revenue for any sum beyond the extent of 
two hundred thousand pounds? To extend its power further, in EXCLUSION of the 
authority of the Union, would be to take the resources of the community out of 
those hands which stood in need of them for the public welfare, in order to put 
them into other hands which could have no just or proper occasion for them. 

Suppose, then, the convention had been inclined to proceed upon the principle of 
a repartition of the objects of revenue, between the Union and its members, in 
PROPORTION to their comparative necessities; what particular fund could have 
been selected for the use of the States, that would not either have been too much 



inadequate to the discharge of the existing debts of the particular States, and 
would have left them dependent on the Union for a provision for this purpose. 

The preceding train of observation will justify the position which has been 
elsewhere laid down, that "A CONCURRENT JURISDICTION in the article of 
taxation was the only admissible substitute for an entire subordination, in respect 
to this branch of power, of State authority to that of the Union." Any separation of 
the objects of revenue that could have been fallen upon, would have amounted to a 
sacrifice of the great INTERESTS of the Union to the POWER of the individual 
States. The convention thought the concurrent jurisdiction preferable to that 
subordination; and it is evident that it has at least the merit of reconciling an 
indefinite constitutional power of taxation in the Federal government with an 
adequate and independent power in the States to provide for their own 
necessities. There remain a few other lights, in which this important subject of 
taxation will claim a further consideration. 

PUBLIUS 



I 1/ \ I V I IL 



To the People of the State of New York: 

BEFORE we proceed to examine any other objections to an indefinite power of 
taxation in the Union, I shall make one general remark; which is, that if the 
jurisdiction of the national government, in the article of revenue, should be 
restricted to particular objects, it would naturally occasion an undue proportion of 
the public burdens to fall upon those objects. Two evils would spring from this 
source: the oppression of particular branches of industry; and an unequal 
distribution of the taxes, as well among the several States as among the citizens of 
the same State. 

Suppose, as has been contended for, the federal power of taxation were to be 
confined to duties on imports, it is evident that the government, for want of being 
able to command other resources, would frequently be tempted to extend these 
duties to an injurious excess. There are persons who imagine that they can never 
be carried to too great a length; since the higher they are, the more it is alleged 
they will tend to discourage an extravagant consumption, to produce a favorable 
balance of trade, and to promote domestic manufactures. But all extremes are 



think that a division of the duty, between the seller and the buyer, more often 
happens than is commonly imagined. It is not always possible to raise the price of 
a commodity in exact proportion to every additional imposition laid upon it. The 
merchant, especially in a country of small commercial capital, is often under a 
necessity of keeping prices down in order to a more expeditious sale. 

The maxim that the consumer is the payer, is so much oftener true than the reverse 
of the proposition, that it is far more equitable that the duties on imports should go 
into a common stock, than that they should redound to the exclusive benefit of the 
importing States. But it is not so generally true as to render it equitable, that those 
duties should form the only national fund. When they are paid by the merchant they 
operate as an additional tax upon the importing State, whose citizens pay their 
proportion of them in the character of consumers. In this view they are productive 
of inequality among the States; which inequality would be increased with the 
increased extent of the duties. The confinement of the national revenues to this 
species of imposts would be attended with inequality, from a different cause, 
between the manufacturing and the non-manufacturing States. The States which 
can go farthest towards the supply of their own wants, by their own manufactures, 
will not, according to their numbers or wealth, consume so great a proportion of 



calci iucu lu aii iiijuiiuuo cauciiic il 1 1 lay uc uuocivcu, uui nui 1 1 lauiy lu aiciiiair\ 

made in another part of these papers, that the interest of the revenue itself would 
be a sufficient guard against such an extreme. I readily admit that this would be the 
case, as long as other resources were open; but if the avenues to them were 
closed, HOPE, stimulated by necessity, would beget experiments, fortified by 
rigorous precautions and additional penalties, which, for a time, would have the 
intended effect, till there had been leisure to contrive expedients to elude these 
new precautions. The first success would be apt to inspire false opinions, which it 
might require a long course of subsequent experience to correct. Necessity, 
especially in politics, often occasions false hopes, false reasonings, and a system 
of measures correspondingly erroneous. But even if this supposed excess should 
not be a consequence of the limitation of the federal power of taxation, the 
inequalities spoken of would still ensue, though not in the same degree, from the 
other causes that have been noticed. Let us now return to the examination of 
objections. 

One which, if we may judge from the frequency of its repetition, seems most to be 
relied on, is, that the House of Representatives is not sufficiently numerous for the 
reception of all the different classes of citizens, in order to combine the interests 
and feelings of every part of the community, and to produce a due sympathy 



1 1 ic iuca ui an auiucu ic|jicoci nauui i ui cm uiaooco ui u ic |jcu|jic, uy |jcioui 10 ui 

each class, is altogether visionary. Unless it were expressly provided in the 
Constitution, that each different occupation should send one or more members, 
the thing would never take place in practice. Mechanics and manufacturers will 
always be inclined, with few exceptions, to give their votes to merchants, in 
preference to persons of their own professions or trades. Those discerning 
citizens are well aware that the mechanic and manufacturing arts furnish the 
materials of mercantile enterprise and industry. Many of them, indeed, are 
immediately connected with the operations of commerce. They know that the 
merchant is their natural patron and friend; and they are aware, that however great 
the confidence they may justly feel in their own good sense, their interests can be 
more effectually promoted by the merchant than by themselves. They are sensible 
that their habits in life have not been such as to give them those acquired 
endowments, without which, in a deliberative assembly, the greatest natural 
abilities are for the most part useless; and that the influence and weight, and 
superior acquirements of the merchants render them more equal to a contest with 
any spirit which might happen to infuse itself into the public councils, unfriendly to 
the manufacturing and trading interests. These considerations, and many others 
that might be mentioned prove, and experience confirms it, that artisans and 



the proprietor of millions of acres as well as the proprietor of a single acre. Every 
landholder will therefore have a common interest to keep the taxes on land as low 
as possible; and common interest may always be reckoned upon as the surest 
bond of sympathy. But if we even could suppose a distinction of interest between 
the opulent landholder and the middling farmer, what reason is there to conclude, 
that the first would stand a better chance of being deputed to the national 
legislature than the last? If we take fact as our guide, and look into our own senate 
and assembly, we shall find that moderate proprietors of land prevail in both; nor is 
this less the case in the senate, which consists of a smaller number, than in the 
assembly, which is composed of a greater number. Where the qualifications of the 
electors are the same, whether they have to choose a small or a large number, 
their votes will fall upon those in whom they have most confidence; whether these 
happen to be men of large fortunes, or of moderate property, or of no property at 
all. 

It is said to be necessary, that all classes of citizens should have some of their own 
number in the representative body, in order that their feelings and interests may be 
the better understood and attended to. But we have seen that this will never 
happen under any arrangement that leaves the votes of the people free. Where 



the different branches of industry, be likely to prove an impartial arbiter between 
them, ready to promote either, so far as it shall appear to him conducive to the 
general interests of the society? 

If we take into the account the momentary humors or dispositions which may 
happen to prevail in particular parts of the society, and to which a wise 
administration will never be inattentive, is the man whose situation leads to 
extensive inquiry and information less likely to be a competent judge of their 
nature, extent, and foundation than one whose observation does not travel beyond 
the circle of his neighbors and acquaintances? Is it not natural that a man who is a 
candidate for the favor of the people, and who is dependent on the suffrages of his 
fellow-citizens for the continuance of his public honors, should take care to inform 
himself of their dispositions and inclinations, and should be willing to allow them 
their proper degree of influence upon his conduct? This dependence, and the 
necessity of being bound himself, and his posterity, by the laws to which he gives 
his assent, are the true, and they are the strong chords of sympathy between the 
representative and the constituent. 

There is no part of the administration of government that requires extensive 
information and a thorough knowledge of the principles of political economy, so 



to be found. 

PUBLIUS 



FEDERALIST No. 36. The Same Subject 
Continued (Concerning the General Power of 

Taxation) 

From the New York Packet. Tuesday, January 8, 1788. 

HAMILTON 
To the People of the State of New York: 



uit: uibciuvciiiiciyeb ui biiucuiun, emu win uuiiiniciiiu nit: uiuuit: uut; iu men intMii, iiul 

only from the classes to which they particularly belong, but from the society in 
general. The door ought to be equally open to all; and I trust, for the credit of human 
nature, that we shall see examples of such vigorous plants flourishing in the soil of 
federal as well as of State legislation; but occasional instances of this sort will not 
render the reasoning founded upon the general course of things, less conclusive. 

The subject might be placed in several other lights that would all lead to the same 
result; and in particular it might be asked, What greater affinity or relation of 
interest can be conceived between the carpenter and blacksmith, and the linen 
manufacturer or stocking weaver, than between the merchant and either of them? It 
is notorious that there are often as great rivalships between different branches of 
the mechanic or manufacturing arts as there are between any of the departments 
of labor and industry; so that, unless the representative body were to be far more 
numerous than would be consistent with any idea of regularity or wisdom in its 
deliberations, it is impossible that what seems to be the spirit of the objection we 
have been considering should ever be realized in practice. But I forbear to dwell 
any longer on a matter which has hitherto worn too loose a garb to admit even of 
an accurate inspection of its real shape or tendency. 



degree of intelligence to be able to communicate that information? Is the 
knowledge of local circumstances, as applied to taxation, a minute topographical 
acquaintance with all the mountains, rivers, streams, highways, and bypaths in 
each State; or is it a general acquaintance with its situation and resources, with 
the state of its agriculture, commerce, manufactures, with the nature of its products 
and consumptions, with the different degrees and kinds of its wealth, property, and 
industry? 

Nations in general, even under governments of the more popular kind, usually 
commit the administration of their finances to single men or to boards composed 
of a few individuals, who digest and prepare, in the first instance, the plans of 
taxation, which are afterwards passed into laws by the authority of the sovereign or 
legislature. 

Inquisitive and enlightened statesmen are deemed everywhere best qualified to 
make a judicious selection of the objects proper for revenue; which is a clear 
indication, as far as the sense of mankind can have weight in the question, of the 
species of knowledge of local circumstances requisite to the purposes of taxation. 

The taxes intended to be comprised under the general denomination of internal 



and there could be no difficulty in ascertaining the revenue system of each. This 
could always be known from the respective codes of laws, as well as from the 
information of the members from the several States. 

The objection, when applied to real property or to houses and lands, appears to 
have, at first sight, more foundation, but even in this view it will not bear a close 
examination. Land taxes are commonly laid in one of two modes, either by 
ACTUAL valuations, permanent or periodical, or by OCCASIONAL assessments, 
at the discretion, or according to the best judgment, of certain officers whose duty 
it is to make them. In either case, the EXECUTION of the business, which alone 
requires the knowledge of local details, must be devolved upon discreet persons 
in the character of commissioners or assessors, elected by the people or 
appointed by the government for the purpose. All that the law can do must be to 
name the persons or to prescribe the manner of their election or appointment, to 
fix their numbers and qualifications and to draw the general outlines of their 
powers and duties. And what is there in all this that cannot as well be performed by 
the national legislature as by a State legislature? The attention of either can only 
reach to general principles; local details, as already observed, must be referred to 
those who are to execute the plan. 



LdAdLiui i occiiio lu i iavc uccii piuviucu aycunoi vviui yuaiucu uiiuui i io|jcuuui i. n i 

addition to the precaution just mentioned, there is a provision that "all duties, 
imposts, and excises shall be UNIFORM throughout the United States." 

It has been very properly observed by different speakers and writers on the side of 
the Constitution, that if the exercise of the power of internal taxation by the Union 
should be discovered on experiment to be really inconvenient, the federal 
government may then forbear the use of it, and have recourse to requisitions in its 
stead. By way of answer to this, it has been triumphantly asked, Why not in the first 
instance omit that ambiguous power, and rely upon the latter resource? Two solid 
answers may be given. The first is, that the exercise of that power, if convenient, 
will be preferable, because it will be more effectual; and it is impossible to prove in 
theory, or otherwise than by the experiment, that it cannot be advantageously 
exercised. The contrary, indeed, appears most probable. The second answer is, 
that the existence of such a power in the Constitution will have a strong influence in 
giving efficacy to requisitions. When the States know that the Union can apply itself 
without their agency, it will be a powerful motive for exertion on their part. 

As to the interference of the revenue laws of the Union, and of its members, we 
have already seen that there can be no clashing or repugnancy of authority. The 



ivicu ly o|jc;ulic;o i iavc uccn lai^cu uuiui uno puvvci ui iiuciiicu laAauun, lu ca^ilc u ic 

apprehensions of the people: double sets of revenue officers, a duplication of their 
burdens by double taxations, and the frightful forms of odious and oppressive poll- 
taxes, have been played off with all the ingenious dexterity of political legerdemain. 

As to the first point, there are two cases in which there can be no room for double 
sets of officers: one, where the right of imposing the tax is exclusively vested in the 
Union, which applies to the duties on imports; the other, where the object has not 
fallen under any State regulation or provision, which may be applicable to a variety 
of objects. In other cases, the probability is that the United States will either wholly 
abstain from the objects preoccupied for local purposes, or will make use of the 
State officers and State regulations for collecting the additional imposition. This 
will best answer the views of revenue, because it will save expense in the 
collection, and will best avoid any occasion of disgust to the State governments 
and to the people. At all events, here is a practicable expedient for avoiding such 
an inconvenience; and nothing more can be required than to show that evils 
predicted to not necessarily result from the plan. 

As to any argument derived from a supposed system of influence, it is a sufficient 
answer to say that it ought not to be presumed; but the supposition is susceptible 



vji ii u 1 1 aic lu uc csuppncu n i ui ic way ui ai iuu ici , n iu uc uui ic uy u ic auu iuiuy ui u ic 

federal government, it will not be to be done by that of the State government. The 
quantity of taxes to be paid by the community must be the same in either case; 
with this advantage, if the provision is to be made by the Union that the capital 
resource of commercial imposts, which is the most convenient branch of revenue, 
can be prudently improved to a much greater extent under federal than under State 
regulation, and of course will render it less necessary to recur to more 
inconvenient methods; and with this further advantage, that as far as there may be 
any real difficulty in the exercise of the power of internal taxation, it will impose a 
disposition to greater care in the choice and arrangement of the means; and must 
naturally tend to make it a fixed point of policy in the national administration to go 
as far as may be practicable in making the luxury of the rich tributary to the public 
treasury, in order to diminish the necessity of those impositions which might create 
dissatisfaction in the poorer and most numerous classes of the society. Happy it is 
when the interest which the government has in the preservation of its own power, 
coincides with a proper distribution of the public burdens, and tends to guard the 
least wealthy part of the community from oppression! 

As to poll taxes, I, without scruple, confess my disapprobation of them; and though 
they have prevailed from an early period in those States(l) which have uniformly 



essential to the public weal. And the government, from the possibility of such 
emergencies, ought ever to have the option of making use of them. The real 
scarcity of objects in this country, which maybe considered as productive sources 
of revenue, is a reason peculiar to itself, for not abridging the discretion of the 
national councils in this respect. There may exist certain critical and tempestuous 
conjunctures of the State, in which a poll tax may become an inestimable resource. 
And as I know nothing to exempt this portion of the globe from the common 
calamities that have befallen other parts of it, I acknowledge my aversion to every 
project that is calculated to disarm the government of a single weapon, which in 
any possible contingency might be usefully employed for the general defense and 
security. 

(I have now gone through the examination of such of the powers proposed to be 
vested in the United States, which may be considered as having an immediate 
relation to the energy of the government; and have endeavored to answer the 
principal objections which have been made to them. I have passed over in silence 
those minor authorities, which are either too inconsiderable to have been thought 
worthy of the hostilities of the opponents of the Constitution, or of too manifest 
propriety to admit of controversy. The mass of judiciary power, however, might 



di iu juuiuiuuo pcii l ui li ic uui i ii i iui ii iy li icil ouiiic ui li ic uujculiui 10 vviiil.ii nave uccii 

most strenuously urged against the Constitution, and which were most formidable 
in their first appearance, are not only destitute of substance, but if they had 
operated in the formation of the plan, would have rendered it incompetent to the 
great ends of public happiness and national prosperity. I equally flatter myself that 
a further and more critical investigation of the system will serve to recommend it 
still more to every sincere and disinterested advocate for good government and 
will leave no doubt with men of this character of the propriety and expediency of 
adopting it. Happy will it be for ourselves, and more honorable for human nature, if 
we have wisdom and virtue enough to set so glorious an example to 
mankind!)(El) 

PUBLIUS 

1. The New England States. 

El. Two versions of this paragraph appear in different editions. 



I V I # I I—-' l\^ ^— * I 



To the People of the State of New York: 

IN REVIEWING the defects of the existing Confederation, and showing that they 
cannot be supplied by a government of less energy than that before the public, 
several of the most important principles of the latter fell of course under 
consideration. But as the ultimate object of these papers is to determine clearly 
and fully the merits of this Constitution, and the expediency of adopting it, our plan 
cannot be complete without taking a more critical and thorough survey of the work 
of the convention, without examining it on all its sides, comparing it in all its parts, 
and calculating its probable effects. That this remaining task may be executed 
under impressions conducive to a just and fair result, some reflections must in this 
place be indulged, which candor previously suggests. 

It is a misfortune, inseparable from human affairs, that public measures are rarely 
investigated with that spirit of moderation which is essential to a just estimate of 
their real tendency to advance or obstruct the public good; and that this spirit is 
more apt to be diminished than promoted, by those occasions which require an 
unusual exercise of it. To those who have been led by experience to attend to this 



a material difference in the purity of their intentions. It is but just to remark in favor 
of the latter description, that as our situation is universally admitted to be peculiarly 
critical, and to require indispensably that something should be done for our relief, 
the predetermined patron of what has been actually done may have taken his bias 
from the weight of these considerations, as well as from considerations of a 
sinister nature. The predetermined adversary, on the other hand, can have been 
governed by no venial motive whatever. The intentions of the first may be upright, 
as they may on the contrary be culpable. The views of the last cannot be upright, 
and must be culpable. But the truth is, that these papers are not addressed to 
persons falling under either of these characters. They solicit the attention of those 
only, who add to a sincere zeal for the happiness of their country, a temper 
favorable to a just estimate of the means of promoting it. 

Persons of this character will proceed to an examination of the plan submitted by 
the convention, not only without a disposition to find or to magnify faults; but will 
see the propriety of reflecting, that a faultless plan was not to be expected. Nor will 
they barely make allowances for the errors which may be chargeable on the 
fallibility to which the convention, as a body of men, were liable; but will keep in 
mind, that they themselves also are but men, and ought not to assume an 



beacons, which give warning of the course to be shunned, without pointing out that 
which ought to be pursued. The most that the convention could do in such a 
situation, was to avoid the errors suggested by the past experience of other 
countries, as well as of our own; and to provide a convenient mode of rectifying 
their own errors, as future experiences may unfold them. 

Among the difficulties encountered by the convention, a very important one must 
have lain in combining the requisite stability and energy in government, with the 
inviolable attention due to liberty and to the republican form. Without substantially 
accomplishing this part of their undertaking, they would have very imperfectly 
fulfilled the object of their appointment, or the expectation of the public; yet that it 
could not be easily accomplished, will be denied by no one who is unwilling to 
betray his ignorance of the subject. Energy in government is essential to that 
security against external and internal danger, and to that prompt and salutary 
execution of the laws which enter into the very definition of good government. 
Stability in government is essential to national character and to the advantages 
annexed to it, as well as to that repose and confidence in the minds of the people, 
which are among the chief blessings of civil society. An irregular and mutable 
legislation is not more an evil in itself than it is odious to the people; and it maybe 



in which power is lodged should continue for a length of time the same. A frequent 
change of men will result from a frequent return of elections; and a frequent change 
of measures from a frequent change of men: whilst energy in government requires 
not only a certain duration of power, but the execution of it by a single hand. 

How far the convention may have succeeded in this part of their work, will better 
appear on a more accurate view of it. From the cursory view here taken, it must 
clearly appear to have been an arduous part. 

Not less arduous must have been the task of marking the proper line of partition 
between the authority of the general and that of the State governments. Every man 
will be sensible of this difficulty, in proportion as he has been accustomed to 
contemplate and discriminate objects extensive and complicated in their nature. 
The faculties of the mind itself have never yet been distinguished and defined, with 
satisfactory precision, by all the efforts of the most acute and metaphysical 
philosophers. Sense, perception, judgment, desire, volition, memory, imagination, 
are found to be separated by such delicate shades and minute gradations that 
their boundaries have eluded the most subtle investigations, and remain a 
pregnant source of ingenious disquisition and controversy. The boundaries 
between the great kingdom of nature, and, still more, between the various 



ouivcyo uiciii, lu li ic iiiouluuuiio ui iiiciii, 111 vviiil.ii u ic UUOL.UI ny cmoco ao wen iiuiii 

the object itself as from the organ by which it is contemplated, we must perceive 
the necessity of moderating still further our expectations and hopes from the efforts 
of human sagacity. Experience has instructed us that no skill in the science of 
government has yet been able to discriminate and define, with sufficient certainty, 
its three great provinces the legislative, executive, and judiciary; or even the 
privileges and powers of the different legislative branches. Questions daily occur 
in the course of practice, which prove the obscurity which reins in these subjects, 
and which puzzle the greatest adepts in political science. 

The experience of ages, with the continued and combined labors of the most 
enlightened legislatures and jurists, has been equally unsuccessful in delineating 
the several objects and limits of different codes of laws and different tribunals of 
justice. The precise extent of the common law, and the statute law, the maritime 
law, the ecclesiastical law, the law of corporations, and other local laws and 
customs, remains still to be clearly and finally established in Great Britain, where 
accuracy in such subjects has been more industriously pursued than in any other 
part of the world. The jurisdiction of her several courts, general and local, of law, of 
equity, of admiralty, etc., is not less a source of frequent and intricate discussions, 
sufficiently denoting the indeterminate limits by which they are respectively 



Hence it must happen that however accurately objects may be discriminated in 
themselves, and however accurately the discrimination may be considered, the 
definition of them may be rendered inaccurate by the inaccuracy of the terms in 
which it is delivered. And this unavoidable inaccuracy must be greater or less, 
according to the complexity and novelty of the objects defined. When the Almighty 
himself condescends to address mankind in their own language, his meaning, 
luminous as it must be, is rendered dim and doubtful by the cloudy medium 
through which it is communicated. 

Here, then, are three sources of vague and incorrect definitions: indistinctness of 
the object, imperfection of the organ of conception, inadequateness of the vehicle 
of ideas. Any one of these must produce a certain degree of obscurity. The 
convention, in delineating the boundary between the federal and State 
jurisdictions, must have experienced the full effect of them all. 

To the difficulties already mentioned may be added the interfering pretensions of 
the larger and smaller States. We cannot err in supposing that the former would 
contend for a participation in the government, fully proportioned to their superior 
wealth and importance; and that the latter would not be less tenacious of the 
equality at present enjoyed by them. We may well suppose that neither side would 



imui luuiu il nave uccii U ic icuyc cii iu oincui oiaico ui ny, vviiiuii vvuuiu 1 1 iciioi icu 

themselves in opposition to each other on various points. Other combinations, 
resulting from a difference of local position and policy, must have created 
additional difficulties. As every State maybe divided into different districts, and its 
citizens into different classes, which give birth to contending interests and local 
jealousies, so the different parts of the United States are distinguished from each 
other by a variety of circumstances, which produce a like effect on a larger scale. 
And although this variety of interests, for reasons sufficiently explained in a former 
paper, may have a salutary influence on the administration of the government when 
formed, yet every one must be sensible of the contrary influence, which must have 
been experienced in the task of forming it. 

Would it be wonderful if, under the pressure of all these difficulties, the convention 
should have been forced into some deviations from that artificial structure and 
regular symmetry which an abstract view of the subject might lead an ingenious 
theorist to bestow on a Constitution planned in his closet or in his imagination? 
The real wonder is that so many difficulties should have been surmounted, and 
surmounted with a unanimity almost as unprecedented as it must have been 
unexpected. It is impossible for any man of candor to reflect on this circumstance 
without partaking of the astonishment. It is impossible for the man of pious 



cloljcul 10 |jicoci ilcu, li icy ocivc ui ny ao caucljliui 10 lu auniuiiioii uo ui li ic yciiciai 

truth; and by their lustre to darken the gloom of the adverse prospect to which they 
are contrasted. In revolving the causes from which these exceptions result, and 
applying them to the particular instances before us, we are necessarily led to two 
important conclusions. The first is, that the convention must have enjoyed, in a very 
singular degree, an exemption from the pestilential influence of party animosities 
the disease most incident to deliberative bodies, and most apt to contaminate 
their proceedings. The second conclusion is that all the deputations composing 
the convention were satisfactorily accommodated by the final act, or were induced 
to accede to it by a deep conviction of the necessity of sacrificing private opinions 
and partial interests to the public good, and by a despair of seeing this necessity 
diminished by delays or by new experiments. 



FEDERALIST No. 38. The Same Subject 



government has been established with deliberation and consent, the task of 
framing it has not been committed to an assembly of men, but has been 
performed by some individual citizen of preeminent wisdom and approved 
integrity. 

Minos, we learn, was the primitive founder of the government of Crete, as 
Zaleucus was of that of the Locrians. Theseus first, and after him Draco and Solon, 
instituted the government of Athens. Lycurgus was the lawgiver of Sparta. The 
foundation of the original government of Rome was laid by Romulus, and the work 
completed by two of his elective successors, Numa and Tullius Hostilius. On the 
abolition of royalty the consular administration was substituted by Brutus, who 
stepped forward with a project for such a reform, which, he alleged, had been 
prepared by Tullius Hostilius, and to which his address obtained the assent and 
ratification of the senate and people. This remark is applicable to confederate 
governments also. Amphictyon, we are told, was the author of that which bore his 
name. The Achaean league received its first birth from Achaeus, and its second 
from Aratus. 

What degree of agency these reputed lawgivers might have in their respective 



vvmciiuc uuuiu il nave [jiuuccucu, mat a |jcu|jic, jcaiuuo ao uic oiccw vvcic ui 

their liberty, should so far abandon the rules of caution as to place their destiny in 
the hands of a single citizen? Whence could it have proceeded, that the Athenians, 
a people who would not suffer an army to be commanded by fewer than ten 
generals, and who required no other proof of danger to their liberties than the 
illustrious merit of a fellow-citizen, should consider one illustrious citizen as a more 
eligible depositary of the fortunes of themselves and their posterity, than a select 
body of citizens, from whose common deliberations more wisdom, as well as 
more safety, might have been expected? These questions cannot be fully 
answered, without supposing that the fears of discord and disunion among a 
number of counsellors exceeded the apprehension of treachery or incapacity in a 
single individual. History informs us, likewise, of the difficulties with which these 
celebrated reformers had to contend, as well as the expedients which they were 
obliged to employ in order to carry their reforms into effect. Solon, who seems to 
have indulged a more temporizing policy, confessed that he had not given to his 
countrymen the government best suited to their happiness, but most tolerable to 
their prejudices. And Lycurgus, more true to his object, was under the necessity of 
mixing a portion of violence with the authority of superstition, and of securing his 
final success by a voluntary renunciation, first of his country, and then of his life. If 



jjiuuauic;, i iul ui ny uy 1 1 icu ly uui Diuciauui 10 ui a yci icicu i iciiuic, uul uy u ic |jai uouiai 

case of the Articles of Confederation. It is observable that among the numerous 
objections and amendments suggested by the several States, when these articles 
were submitted for their ratification, not one is found which alludes to the great and 
radical error which on actual trial has discovered itself. And if we except the 
observations which New Jersey was led to make, rather by her local situation, than 
by her peculiar foresight, it may be questioned whether a single suggestion was of 
sufficient moment to justify a revision of the system. There is abundant reason, 
nevertheless, to suppose that immaterial as these objections were, they would 
have been adhered to with a very dangerous inflexibility, in some States, had not a 
zeal for their opinions and supposed interests been stifled by the more powerful 
sentiment of self-preservation. One State, we may remember, persisted for 
several years in refusing her concurrence, although the enemy remained the whole 
period at our gates, or rather in the very bowels of our country. Nor was her pliancy 
in the end effected by a less motive, than the fear of being chargeable with 
protracting the public calamities, and endangering the event of the contest. Every 
candid reader will make the proper reflections on these important facts. 

A patient who finds his disorder daily growing worse, and that an efficacious 
remedy can no longer be delayed without extreme danger, after coolly revolving 



reasonably demand, before he ventured to follow this advice, that the authors of it 
should at least agree among themselves on some other remedy to be substituted? 
And if he found them differing as much from one another as from his first 
counsellors, would he not act prudently in trying the experiment unanimously 
recommended by the latter, rather than be hearkening to those who could neither 
deny the necessity of a speedy remedy, nor agree in proposing one? 

Such a patient and in such a situation is America at this moment. She has been 
sensible of her malady. She has obtained a regular and unanimous advice from 
men of her own deliberate choice. And she is warned by others against following 
this advice under pain of the most fatal consequences. Do the monitors deny the 
reality of her danger? No. Do they deny the necessity of some speedy and 
powerful remedy? No. Are they agreed, are any two of them agreed, in their 
objections to the remedy proposed, or in the proper one to be substituted? Let 
them speak for themselves. This one tells us that the proposed Constitution ought 
to be rejected, because it is not a confederation of the States, but a government 
over individuals. Another admits that it ought to be a government over individuals 
to a certain extent, but by no means to the extent proposed. A third does not object 
to the government over individuals, or to the extent proposed, but to the want of a 



Congress will be but a shadow of a representation, and that the government would 
be far less objectionable if the number and the expense were doubled. A patriot in 
a State that does not import or export, discerns insuperable objections against the 
power of direct taxation. The patriotic adversary in a State of great exports and 
imports, is not less dissatisfied that the whole burden of taxes may be thrown on 
consumption. This politician discovers in the Constitution a direct and irresistible 
tendency to monarchy; that is equally sure it will end in aristocracy. Another is 
puzzled to say which of these shapes it will ultimately assume, but sees clearly it 
must be one or other of them; whilst a fourth is not wanting, who with no less 
confidence affirms that the Constitution is so far from having a bias towards either 
of these dangers, that the weight on that side will not be sufficient to keep it upright 
and firm against its opposite propensities. With another class of adversaries to 
the Constitution the language is that the legislative, executive, and judiciary 
departments are intermixed in such a manner as to contradict all the ideas of 
regular government and all the requisite precautions in favor of liberty. Whilst this 
objection circulates in vague and general expressions, there are but a few who 
lend their sanction to it. Let each one come forward with his particular explanation, 
and scarce any two are exactly agreed upon the subject. In the eyes of one the 
junction of the Senate with the President in the responsible function of appointing 



never agree that a reference of impeachments to the judiciary authority would be 
an amendment of the error. Our principal dislike to the organization arises from the 
extensive powers already lodged in that department." Even among the zealous 
patrons of a council of state the most irreconcilable variance is discovered 
concerning the mode in which it ought to be constituted. The demand of one 
gentleman is, that the council should consist of a small number to be appointed by 
the most numerous branch of the legislature. Another would prefer a larger 
number, and considers it as a fundamental condition that the appointment should 
be made by the President himself. 

As it can give no umbrage to the writers against the plan of the federal 
Constitution, let us suppose, that as they are the most zealous, so they are also the 
most sagacious, of those who think the late convention were unequal to the task 
assigned them, and that a wiser and better plan might and ought to be substituted. 
Let us further suppose that their country should concur, both in this favorable 
opinion of their merits, and in their unfavorable opinion of the convention; and 
should accordingly proceed to form them into a second convention, with full 
powers, and for the express purpose of revising and remoulding the work of the 
first. Were the experiment to be seriously made, though it required some effort to 



CiyCUl I^L LI IC I ICVV V^UI DlllUUUI I Ol IUUIU I ICVCI UCLII LU IIIIIIU LI IC UCICl/lO Ul LI ICLL VVI IIL.I I IO 

to be exchanged for it. It is not necessary that the former should be perfect; it is 
sufficient that the latter is more imperfect. No man would refuse to give brass for 
silver or gold, because the latter had some alloy in it. No man would refuse to quit 
a shattered and tottering habitation for a firm and commodious building, because 
the latter had not a porch to it, or because some of the rooms might be a little 
larger or smaller, or the ceilings a little higher or lower than his fancy would have 
planned them. But waiving illustrations of this sort, is it not manifest that most of the 
capital objections urged against the new system lie with tenfold weight against the 
existing Confederation? Is an indefinite power to raise money dangerous in the 
hands of the federal government? The present Congress can make requisitions to 
any amount they please, and the States are constitutionally bound to furnish them; 
they can emit bills of credit as long as they will pay for the paper; they can borrow, 
both abroad and at home, as long as a shilling will be lent. Is an indefinite power to 
raise troops dangerous? The Confederation gives to Congress that power also; 
and they have already begun to make use of it. Is it improper and unsafe to 
intermix the different powers of government in the same body of men? Congress, 
a single body of men, are the sole depositary of all the federal powers. Is it 
particularly dangerous to give the keys of the treasury, and the command of the 



uanyn ly u ici 1 1 n ilu |jiauuuc, u icii i iuvvcvci laiyc u ic 1 1 laoo ui |juvvcio 1 1 lay uc, u 10 n i 

fact a lifeless mass. Then, say I, in the first place, that the Confederation is 
chargeable with the still greater folly of declaring certain powers in the federal 
government to be absolutely necessary, and at the same time rendering them 
absolutely nugatory; and, in the next place, that if the Union is to continue, and no 
better government be substituted, effective powers must either be granted to, or 
assumed by, the existing Congress; in either of which events, the contrast just 
stated will hold good. But this is not all. Out of this lifeless mass has already grown 
an excrescent power, which tends to realize all the dangers that can be 
apprehended from a defective construction of the supreme government of the 
Union. It is now no longer a point of speculation and hope, that the Western 
territory is a mine of vast wealth to the United States; and although it is not of such 
a nature as to extricate them from their present distresses, or for some time to 
come, to yield any regular supplies for the public expenses, yet must it hereafter 
be able, under proper management, both to effect a gradual discharge of the 
domestic debt, and to furnish, for a certain period, liberal tributes to the federal 
treasury. A very large proportion of this fund has been already surrendered by 
individual States; and it may with reason be expected that the remaining States 
will not persist in withholding similar proofs of their equity and generosity. We may 



men, who have not only been silent spectators of this prospect, but who are 
advocates for the system which exhibits it; and, at the same time, urge against the 
new system the objections which we have heard. Would they not act with more 
consistency, in urging the establishment of the latter, as no less necessary to 
guard the Union against the future powers and resources of a body constructed 
like the existing Congress, than to save it from the dangers threatened by the 
present impotency of that Assembly? 

I mean not, by any thing here said, to throw censure on the measures which have 
been pursued by Congress. I am sensible they could not have done otherwise. The 
public interest, the necessity of the case, imposed upon them the task of 
overleaping their constitutional limits. But is not the fact an alarming proof of the 
danger resulting from a government which does not possess regular powers 
commensurate to its objects? A dissolution or usurpation is the dreadful dilemma 
to which it is continually exposed. 

PUBLIUS 



To the People of the State of New York: 

THE last paper having concluded the observations which were meant to introduce 
a candid survey of the plan of government reported by the convention, we now 
proceed to the execution of that part of our undertaking. 

The first question that offers itself is, whether the general form and aspect of the 
government be strictly republican. It is evident that no other form would be 
reconcilable with the genius of the people of America; with the fundamental 
principles of the Revolution; or with that honorable determination which animates 
every votary of freedom, to rest all our political experiments on the capacity of 
mankind for self-government. If the plan of the convention, therefore, be found to 
depart from the republican character, its advocates must abandon it as no longer 
defensible. 

What, then, are the distinctive characters of the republican form? Were an answer 
to this question to be sought, not by recurring to principles, but in the application of 
the term by political writers, to the constitution of different States, no satisfactory 
one would ever be found. Holland, in which no particle of the supreme authority is 
derived from the people, has passed almost universally under the denomination of 



yuvci i ii i ici 11 cue coiauiioi icu, vvc may uciiiic a icpuuin, lu uc, ui ai icaoi 1 1 lay 

bestow that name on, a government which derives all its powers directly or 
indirectly from the great body of the people, and is administered by persons 
holding their offices during pleasure, for a limited period, or during good behavior. 
It is ESSENTIAL to such a government that it be derived from the great body of the 
society, not from an inconsiderable proportion, or a favored class of it; otherwise a 
handful of tyrannical nobles, exercising their oppressions by a delegation of their 
powers, might aspire to the rank of republicans, and claim for their government the 
honorable title of republic. It is SUFFICIENT for such a government that the 
persons administering it be appointed, either directly or indirectly, by the people; 
and that they hold their appointments by either of the tenures just specified; 
otherwise every government in the United States, as well as every other popular 
government that has been or can be well organized or well executed, would be 
degraded from the republican character. According to the constitution of every 
State in the Union, some or other of the officers of government are appointed 
indirectly only by the people. According to most of them, the chief magistrate 
himself is so appointed. And according to one, this mode of appointment is 
extended to one of the co-ordinate branches of the legislature. According to all the 
constitutions, also, the tenure of the highest offices is extended to a definite 



niuiicuuy iiuiii u ic |jcu|jic. 1 1 ic nccsiuciu 10 niuncuuy ucuvcu iiuiii u ic uiiuiuc ui 

the people, according to the example in most of the States. Even the judges, with 
all other officers of the Union, will, as in the several States, be the choice, though a 
remote choice, of the people themselves, the duration of the appointments is 
equally conformable to the republican standard, and to the model of State 
constitutions The House of Representatives is periodically elective, as in all the 
States; and for the period of two years, as in the State of South Carolina. The 
Senate is elective, for the period of six years; which is but one year more than the 
period of the Senate of Maryland, and but two more than that of the Senates of 
New York and Virginia. The President is to continue in office for the period of four 
years; as in New York and Delaware, the chief magistrate is elected for three 
years, and in South Carolina for two years. In the other States the election is 
annual. In several of the States, however, no constitutional provision is made for 
the impeachment of the chief magistrate. And in Delaware and Virginia he is not 
impeachable till out of office. The President of the United States is impeachable at 
any time during his continuance in office. The tenure by which the judges are to 
hold their places, is, as it unquestionably ought to be, that of good behavior. The 
tenure of the ministerial offices generally, will be a subject of legal regulation, 
conformably to the reason of the case and the example of the State constitutions. 



ui iuci Ldt\ci i : iiic iidiiuic vviiil.ii i iao uccii mauc ui uno uujcuuuii icljuii c^ li icil il 

should be examined with some precision. 

Without inquiring into the accuracy of the distinction on which the objection is 
founded, it will be necessary to a just estimate of its force, first, to ascertain the 
real character of the government in question; secondly, to inquire how far the 
convention were authorized to propose such a government; and thirdly, how far the 
duty they owed to their country could supply any defect of regular authority. 

First. In order to ascertain the real character of the government, it may be 
considered in relation to the foundation on which it is to be established; to the 
sources from which its ordinary powers are to be drawn; to the operation of those 
powers; to the extent of them; and to the authority by which future changes in the 
government are to be introduced. 

On examining the first relation, it appears, on one hand, that the Constitution is to 
be founded on the assent and ratification of the people of America, given by 
deputies elected for the special purpose; but, on the other, that this assent and 
ratification is to be given by the people, not as individuals composing one entire 
nation, but as composing the distinct and independent States to which they 



aaaci n u icu i n i no ucii ly cajjicsocu, i iul uy u ic icy i^iau vc auu luiuy, uui uy u icii ui u ic 

people themselves. Were the people regarded in this transaction as forming one 
nation, the will of the majority of the whole people of the United States would bind 
the minority, in the same manner as the majority in each State must bind the 
minority; and the will of the majority must be determined either by a comparison of 
the individual votes, or by considering the will of the majority of the States as 
evidence of the will of a majority of the people of the United States. Neither of 
these rules have been adopted. Each State, in ratifying the Constitution, is 
considered as a sovereign body, independent of all others, and only to be bound 
by its own voluntary act. In this relation, then, the new Constitution will, if 
established, be a FEDERAL, and not a NATIONAL constitution. 

The next relation is, to the sources from which the ordinary powers of government 
are to be derived. The House of Representatives will derive its powers from the 
people of America; and the people will be represented in the same proportion, 
and on the same principle, as they are in the legislature of a particular State. So 
far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, 
will derive its powers from the States, as political and coequal societies; and 
these will be represented on the principle of equality in the Senate, as they now 
are in the existing Congress. So far the government is FEDERAL, not NATIONAL. 



Wl"" tr"S.AA I IWIN Wl~~ I ni_ VJW V tr^lMIVItlM I , IO OU|J|JUOCU lu UUI IOIOL II I LI MO, LI ICLL II I LI IC 

former the powers operate on the political bodies composing the Confederacy, in 
their political capacities; in the latter, on the individual citizens composing the 
nation, in their individual capacities. On trying the Constitution by this criterion, it 
falls under the NATIONAL, not the FEDERAL character; though perhaps not so 
completely as has been understood. In several cases, and particularly in the trial of 
controversies to which States may be parties, they must be viewed and 
proceeded against in their collective and political capacities only. So far the 
national countenance of the government on this side seems to be disfigured by a 
few federal features. But this blemish is perhaps unavoidable in any plan; and the 
operation of the government on the people, in their individual capacities, in its 
ordinary and most essential proceedings, may, on the whole, designate it, in this 
relation, a NATIONAL government. 

But if the government be national with regard to the OPERATION of its powers, it 
changes its aspect again when we contemplate it in relation to the EXTENT of its 
powers. The idea of a national government involves in it, not only an authority over 
the individual citizens, but an indefinite supremacy over all persons and things, so 
far as they are objects of lawful government. Among a people consolidated into 
one nation, this supremacy is completely vested in the national legislature. Among 



to be established under the general government. But this does not change the 
principle of the case. The decision is to be impartially made, according to the rules 
of the Constitution; and all the usual and most effectual precautions are taken to 
secure this impartiality. Some such tribunal is clearly essential to prevent an 
appeal to the sword and a dissolution of the compact; and that it ought to be 
established under the general rather than under the local governments, or, to 
speak more properly, that it could be safely established under the first alone, is a 
position not likely to be combated. 

If we try the Constitution by its last relation to the authority by which amendments 
are to be made, we find it neither wholly NATIONAL nor wholly FEDERAL. Were it 
wholly national, the supreme and ultimate authority would reside in the MAJORITY 
of the people of the Union; and this authority would be competent at all times, like 
that of a majority of every national society, to alter or abolish its established 
government. Were it wholly federal, on the other hand, the concurrence of each 
State in the Union would be essential to every alteration that would be binding on 
all. The mode provided by the plan of the convention is not founded on either of 
these principles. In requiring more than a majority, and principles. In requiring 
more than a majority, and particularly in computing the proportion by STATES, not 



icuciai i iui vvi luny iiciuuiicu. 

PUBLIUS 



FEDERALIST No. 40. On the Powers of the 

Convention to Form a Mixed Government 

Examined and Sustained. 

For the New York Packet. Friday, January 18, 1788. 

MADISON 
To the People of the State of New York: 



II ILVJ OUI lOIUCiaLIUII LI IC Ol LUCILIVJI I KJ I LI IC Ul IIICU OiaLCO, LU/ UCVIOC OUUI I I V-M \ I I I l_ I \ 

PROVISIONS as shall appear to them necessary to render the Constitution of the 
federal government ADEQUATE TO THE EXIGENCIES OF THE UNION; and to 
report such an act for that purpose, to the United States in Congress assembled, 
as when agreed to by them, and afterwards confirmed by the legislature of every 
State, will effectually provide for the same." 

The recommendatory act of Congress is in the words following: "WHEREAS, 
There is provision in the articles of Confederation and perpetual Union, for making 
alterations therein, by the assent of a Congress of the United States, and of the 
legislatures of the several States; and whereas experience hath evinced, that there 
are defects in the present Confederation; as a mean to remedy which, several of 
the States, and PARTICULARLY THE STATE OF NEW YORK, by express 
instructions to their delegates in Congress, have suggested a convention for the 
purposes expressed in the following resolution; and such convention appearing to 
be the most probable mean of establishing in these States A FIRM NATIONAL 
GOVERNMENT: 

"Resolved, That in the opinion of Congress it is expedient, that on the second 
Monday of May next a convention of delegates, who shall have been appointed by 



|jui|juoco vvcic lu uc ciiculcu uy aai_ i i_r\n i iwino aaiml-' rrvuvioiuiNO iim i nt. 

ARTICLES OF CONFEDERATION, as it is expressed in the act of Congress, or 
by SUCH FURTHER PROVISIONS AS SHOULD APPEAR NECESSARY, as it 
stands in the recommendatory act from Annapolis; 4th, that the alterations and 
provisions were to be reported to Congress, and to the States, in order to be 
agreed to by the former and confirmed by the latter. 

From a comparison and fair construction of these several modes of expression, is 
to be deduced the authority under which the convention acted. They were to frame 
a NATIONAL GOVERNMENT, adequate to the EXIGENCIES OF 
GOVERNMENT, and OF THE UNION; and to reduce the articles of Confederation 
into such form as to accomplish these purposes. 

There are two rules of construction, dictated by plain reason, as well as founded 
on legal axioms. The one is, that every part of the expression ought, if possible, to 
be allowed some meaning, and be made to conspire to some common end. The 
other is, that where the several parts cannot be made to coincide, the less 
important should give way to the more important part; the means should be 
sacrificed to the end, rather than the end to the means. 



or that an adequate government should be omitted, and the articles of 
Confederation preserved. Let them declare, whether the preservation of these 
articles was the end, for securing which a reform of the government was to be 
introduced as the means; or whether the establishment of a government, adequate 
to the national happiness, was the end at which these articles themselves 
originally aimed, and to which they ought, as insufficient means, to have been 
sacrificed. 

But is it necessary to suppose that these expressions are absolutely irreconcilable 
to each other; that no ALTERATIONS or PROVISIONS in the articles of the 
confederation could possibly mould them into a national and adequate 
government; into such a government as has been proposed by the convention? 

No stress, it is presumed, will, in this case, be laid on the TITLE; a change of that 
could never be deemed an exercise of ungranted power. ALTERATIONS in the 
body of the instrument are expressly authorized. NEW PROVISIONS therein are 
also expressly authorized. Here then is a power to change the title; to insert new 
articles; to alter old ones. Must it of necessity be admitted that this power is 
infringed, so long as a part of the old articles remain? Those who maintain the 
affirmative ought at least to mark the boundary between authorized and usurped 



that the members of the government should derive their appointment from the 
legislatures, not from the people of the States? One branch of the new government 
is to be appointed by these legislatures; and under the Confederation, the 
delegates to Congress MAY ALL be appointed immediately by the people, and in 
two States(l) are actually so appointed. Do they require that the powers of the 
government should act on the States, and not immediately on individuals? In some 
instances, as has been shown, the powers of the new government will act on the 
States in their collective characters. In some instances, also, those of the existing 
government act immediately on individuals. In cases of capture; of piracy; of the 
post office; of coins, weights, and measures; of trade with the Indians; of claims 
under grants of land by different States; and, above all, in the case of trials by 
courts-marshal in the army and navy, by which death may be inflicted without the 
intervention of a jury, or even of a civil magistrate; in all these cases the powers of 
the Confederation operate immediately on the persons and interests of individual 
citizens. Do these fundamental principles require, particularly, that no tax should 
be levied without the intermediate agency of the States? The Confederation itself 
authorizes a direct tax, to a certain extent, on the post office. The power of coinage 
has been so construed by Congress as to levy a tribute immediately from that 
source also. But pretermitting these instances, was it not an acknowledged object 



independent jurisdiction. 

The truth is, that the great principles of the Constitution proposed by the 
convention may be considered less as absolutely new, than as the expansion of 
principles which are found in the articles of Confederation. The misfortune under 
the latter system has been, that these principles are so feeble and confined as to 
justify all the charges of inefficiency which have been urged against it, and to 
require a degree of enlargement which gives to the new system the aspect of an 
entire transformation of the old. 

In one particular it is admitted that the convention have departed from the tenor of 
their commission. Instead of reporting a plan requiring the confirmation OF THE 
LEGISLATURES OF ALL THE STATES, they have reported a plan which is to be 
confirmed by the PEOPLE, and may be carried into effect by NINE STATES 
ONLY. It is worthy of remark that this objection, though the most plausible, has 
been the least urged in the publications which have swarmed against the 
convention. The forbearance can only have proceeded from an irresistible 
conviction of the absurdity of subjecting the fate of twelve States to the 
perverseness or corruption of a thirteenth; from the example of inflexible 
opposition given by a MAJORITY of one sixtieth of the people of America to a 



seen in what manner they have borne the trial even on that supposition. It is time 
now to recollect that the powers were merely advisory and recommendatory; that 
they were so meant by the States, and so understood by the convention; and that 
the latter have accordingly planned and proposed a Constitution which is to be of 
no more consequence than the paper on which it is written, unless it be stamped 
with the approbation of those to whom it is addressed. This reflection places the 
subject in a point of view altogether different, and will enable us to judge with 
propriety of the course taken by the convention. 

Let us view the ground on which the convention stood. It may be collected from 
their proceedings, that they were deeply and unanimously impressed with the 
crisis, which had led their country almost with one voice to make so singular and 
solemn an experiment for correcting the errors of a system by which this crisis had 
been produced; that they were no less deeply and unanimously convinced that 
such a reform as they have proposed was absolutely necessary to effect the 
purposes of their appointment. It could not be unknown to them that the hopes and 
expectations of the great body of citizens, throughout this great empire, were 
turned with the keenest anxiety to the event of their deliberations. They had every 
reason to believe that the contrary sentiments agitated the minds and bosoms of 



must have reflected, that in all great changes of established governments, forms 
ought to give way to substance; that a rigid adherence in such cases to the former, 
would render nominal and nugatory the transcendent and precious right of the 
people to "abolish or alter their governments as to them shall seem most likely to 
effect their safety and happiness,"(2) since it is impossible for the people 
spontaneously and universally to move in concert towards their object; and it is 
therefore essential that such changes be instituted by some INFORMAL AND 
UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable 
citizen or number of citizens. They must have recollected that it was by this 
irregular and assumed privilege of proposing to the people plans for their safety 
and happiness, that the States were first united against the danger with which they 
were threatened by their ancient government; that committees and congresses 
were formed for concentrating their efforts and defending their rights; and that 
CONVENTIONS were ELECTED in THE SEVERAL STATES for establishing the 
constitutions under which they are now governed; nor could it have been forgotten 
that no little ill-timed scruples, no zeal for adhering to ordinary forms, were 
anywhere seen, except in those who wished to indulge, under these masks, their 
secret enmity to the substance contended for. They must have borne in mind, that 
as the plan to be framed and proposed was to be submitted TO THE PEOPLE 



oyoicin ^apciuic, hi Liicii juuyiiicin, ui ocuuiniy ilo i lappn icoa, icir\ci i li ic uuiu anu 

sullen resolution of disappointing its ardent hopes, of sacrificing substance to 
forms, of committing the dearest interests of their country to the uncertainties of 
delay and the hazard of events, let me ask the man who can raise his mind to one 
elevated conception, who can awaken in his bosom one patriotic emotion, what 
judgment ought to have been pronounced by the impartial world, by the friends of 
mankind, by every virtuous citizen, on the conduct and character of this assembly? 
Or if there be a man whose propensity to condemn is susceptible of no control, let 
me then ask what sentence he has in reserve for the twelve States who 
USURPED THE POWER of sending deputies to the convention, a body utterly 
unknown to their constitutions; for Congress, who recommended the appointment 
of this body, equally unknown to the Confederation; and for the State of New York, 
in particular, which first urged and then complied with this unauthorized 
interposition? 

But that the objectors may be disarmed of every pretext, it shall be granted for a 
moment that the convention were neither authorized by their commission, nor 
justified by circumstances in proposing a Constitution for their country: does it 
follow that the Constitution ought, for that reason alone, to be rejected? If, 
according to the noble precept, it be lawful to accept good advice even from an 



il uc ucuuuiaicu lu auuui i ipnoi i u ic vicvvo ai iu i lappn icoo ui u ic |jcu|jic ui aaiiiciiuci. 

How far this character is due to the Constitution, is the subject under investigation. 



PUBLIUS 



1. Connecticut and Rhode Island. 

2. Declaration of Independence. 



FEDERALIST No. 41. General View of the Powers 
Conferred by The Constitution 

For the Independent Journal. Saturday, January 19, 1788 



improper? 2. Whether the entire mass of them be dangerous to the portion of 
jurisdiction left in the several States? 

Is the aggregate power of the general government greater than ought to have been 
vested in it? This is the FIRST question. 

It cannot have escaped those who have attended with candor to the arguments 
employed against the extensive powers of the government, that the authors of 
them have very little considered how far these powers were necessary means of 
attaining a necessary end. They have chosen rather to dwell on the 
inconveniences which must be unavoidably blended with all political advantages; 
and on the possible abuses which must be incident to every power or trust, of 
which a beneficial use can be made. This method of handling the subject cannot 
impose on the good sense of the people of America. It may display the subtlety of 
the writer; it may open a boundless field for rhetoric and declamation; it may 
inflame the passions of the unthinking, and may confirm the prejudices of the 
misthinking: but cool and candid people will at once reflect, that the purest of 
human blessings must have a portion of alloy in them; that the choice must always 
be made, if not of the lesser evil, at least of the GREATER, not the PERFECT, 



ui li ic ii iiciuuuioc vviui luiciyii iiciuuiio, o. ivicui nci iai iuc ui i icii 1 1 iui ly cii iu piupci 

intercourse among the States; 4. Certain miscellaneous objects of general utility; 
5. Restraint of the States from certain injurious acts; 6. Provisions for giving due 
efficacy to all these powers. 

The powers falling within the FIRST class are those of declaring war and granting 
letters of marque; of providing armies and fleets; of regulating and calling forth the 
militia; of levying and borrowing money. 

Security against foreign danger is one of the primitive objects of civil society. It is 
an avowed and essential object of the American Union. The powers requisite for 
attaining it must be effectually confided to the federal councils. 

Is the power of declaring war necessary? No man will answer this question in the 
negative. It would be superfluous, therefore, to enter into a proof of the affirmative. 
The existing Confederation establishes this power in the most ample form. 

Is the power of raising armies and equipping fleets necessary? This is involved in 
the foregoing power. It is involved in the power of self-defense. 

But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well 



could prohibit, in like manner, the preparations and establishments of every hostile 
nation? The means of security can only be regulated by the means and the danger 
of attack. They will, in fact, be ever determined by these rules, and by no others. It 
is in vain to oppose constitutional barriers to the impulse of self-preservation. It is 
worse than in vain; because it plants in the Constitution itself necessary 
usurpations of power, every precedent of which is a germ of unnecessary and 
multiplied repetitions. If one nation maintains constantly a disciplined army, ready 
for the service of ambition or revenge, it obliges the most pacific nations who may 
be within the reach of its enterprises to take corresponding precautions. The 
fifteenth century was the unhappy epoch of military establishments in the time of 
peace. They were introduced by Charles VII. of France. All Europe has followed, or 
been forced into, the example. Had the example not been followed by other 
nations, all Europe must long ago have worn the chains of a universal monarch. 
Were every nation except France now to disband its peace establishments, the 
same event might follow. The veteran legions of Rome were an overmatch for the 
undisciplined valor of all other nations and rendered her the mistress of the world. 

Not the less true is it, that the liberties of Rome proved the final victim to her 
military triumphs; and that the liberties of Europe, as far as they ever existed, have, 



I I IC Ul II U I I I LOCH, VVI IIUI I IL l/CI I ICI ILO ai IU 3COUIC3, UCOLIUyO CVCiy (JIClCAl iui an llll lcli y 

establishment which could be dangerous. America united, with a handful of troops, 
or without a single soldier, exhibits a more forbidding posture to foreign ambition 
than America disunited, with a hundred thousand veterans ready for combat. It was 
remarked, on a former occasion, that the want of this pretext had saved the 
liberties of one nation in Europe. Being rendered by her insular situation and her 
maritime resources impregnable to the armies of her neighbors, the rulers of 
Great Britain have never been able, by real or artificial dangers, to cheat the public 
into an extensive peace establishment. The distance of the United States from the 
powerful nations of the world gives them the same happy security. A dangerous 
establishment can never be necessary or plausible, so long as they continue a 
united people. But let it never, for a moment, be forgotten that they are indebted for 
this advantage to the Union alone. The moment of its dissolution will be the date of 
a new order of things. The fears of the weaker, or the ambition of the stronger 
States, or Confederacies, will set the same example in the New, as Charles VII. 
did in the Old World. The example will be followed here from the same motives 
which produced universal imitation there. Instead of deriving from our situation the 
precious advantage which Great Britain has derived from hers, the face of 
America will be but a copy of that of the continent of Europe. It will present liberty 



uilcii caiiiuilcu. tvciy man vvi iu iuvco |jcauc, cvciy iiia.ii vvi iu iuvco i no uuui my, 

every man who loves liberty, ought to have it ever before his eyes, that he may 
cherish in his heart a due attachment to the Union of America, and be able to set a 
due value on the means of preserving it. 

Next to the effectual establishment of the Union, the best possible precaution 
against danger from standing armies is a limitation of the term for which revenue 
may be appropriated to their support. This precaution the Constitution has 
prudently added. I will not repeat here the observations which I flatter myself have 
placed this subject in a just and satisfactory light. But it may not be improper to 
take notice of an argument against this part of the Constitution, which has been 
drawn from the policy and practice of Great Britain. It is said that the continuance 
of an army in that kingdom requires an annual vote of the legislature; whereas the 
American Constitution has lengthened this critical period to two years. This is the 
form in which the comparison is usually stated to the public: but is it a just form? Is 
it a fair comparison? Does the British Constitution restrain the parliamentary 
discretion to one year? Does the American impose on the Congress 
appropriations for two years? On the contrary, it cannot be unknown to the authors 
of the fallacy themselves, that the British Constitution fixes no limit whatever to the 
discretion of the legislature, and that the American ties down the legislature to two 



ucuiiiy, lu calci iu u ic iciiii ucyuiiu a. oiiiljic ycai, uuyin iiui ouo|jiuiuii iiciocii lu 

blush, in pretending that the representatives of the United States, elected FREELY 
by the WHOLE BODY of the people, every SECOND YEAR, cannot be safely 
intrusted with the discretion over such appropriations, expressly limited to the short 
period of TWO YEARS? 

A bad cause seldom fails to betray itself. Of this truth, the management of the 
opposition to the federal government is an unvaried exemplification. But among all 
the blunders which have been committed, none is more striking than the attempt to 
enlist on that side the prudent jealousy entertained by the people, of standing 
armies. The attempt has awakened fully the public attention to that important 
subject; and has led to investigations which must terminate in a thorough and 
universal conviction, not only that the constitution has provided the most effectual 
guards against danger from that quarter, but that nothing short of a Constitution 
fully adequate to the national defense and the preservation of the Union, can save 
America from as many standing armies as it may be split into States or 
Confederacies, and from such a progressive augmentation, of these 
establishments in each, as will render them as burdensome to the properties and 
ominous to the liberties of the people, as any establishment that can become 
necessary, under a united and efficient government, must be tolerable to the 



provision for naval protection, and if they have hitherto been suffered to sleep 
quietly in their beds; if their property has remained safe against the predatory spirit 
of licentious adventurers; if their maritime towns have not yet been compelled to 
ransom themselves from the terrors of a conflagration, by yielding to the exactions 
of daring and sudden invaders, these instances of good fortune are not to be 
ascribed to the capacity of the existing government for the protection of those from 
whom it claims allegiance, but to causes that are fugitive and fallacious. If we 
except perhaps Virginia and Maryland, which are peculiarly vulnerable on their 
eastern frontiers, no part of the Union ought to feel more anxiety on this subject 
than New York. Her seacoast is extensive. A very important district of the State is 
an island. The State itself is penetrated by a large navigable river for more than 
fifty leagues. The great emporium of its commerce, the great reservoir of its 
wealth, lies every moment at the mercy of events, and may almost be regarded as 
a hostage for ignominious compliances with the dictates of a foreign enemy, or 
even with the rapacious demands of pirates and barbarians. Should a war be the 
result of the precarious situation of European affairs, and all the unruly passions 
attending it be let loose on the ocean, our escape from insults and depredations, 
not only on that element, but every part of the other bordering on it, will be truly 
miraculous. In the present condition of America, the States more immediately 



Constitution. I will address one additional reflection only to those who contend that 
the power ought to have been restrained to externalA — taxation by which they 
mean, taxes on articles imported from other countries. It cannot be doubted that 
this will always be a valuable source of revenue; that for a considerable time it 
must be a principal source; that at this moment it is an essential one. But we may 
form very mistaken ideas on this subject, if we do not call to mind in our 
calculations, that the extent of revenue drawn from foreign commerce must vary 
with the variations, both in the extent and the kind of imports; and that these 
variations do not correspond with the progress of population, which must be the 
general measure of the public wants. As long as agriculture continues the sole 
field of labor, the importation of manufactures must increase as the consumers 
multiply. As soon as domestic manufactures are begun by the hands not called for 
by agriculture, the imported manufactures will decrease as the numbers of people 
increase. In a more remote stage, the imports may consist in a considerable part 
of raw materials, which will be wrought into articles for exportation, and will, 
therefore, require rather the encouragement of bounties, than to be loaded with 
discouraging duties. A system of government, meant for duration, ought to 
contemplate these revolutions, and be able to accommodate itself to them. 



Ill LI IC V^UI DlllUUUI I, LI Id I I LI IC yCMCICll CA|JICOOIUI IO JUOL LIICU, LI IC CLUUIUIO Ul LI IC 

objection might have had some color for it; though it would have been difficult to 
find a reason for so awkward a form of describing an authority to legislate in all 
possible cases. A power to destroy the freedom of the press, the trial by jury, or 
even to regulate the course of descents, or the forms of conveyances, must be 
very singularly expressed by the terms "to raise money for the general welfare." 

But what color can the objection have, when a specification of the objects alluded 
to by these general terms immediately follows, and is not even separated by a 
longer pause than a semicolon? If the different parts of the same instrument ought 
to be so expounded, as to give meaning to every part which will bear it, shall one 
part of the same sentence be excluded altogether from a share in the meaning; 
and shall the more doubtful and indefinite terms be retained in their full extent, and 
the clear and precise expressions be denied any signification whatsoever? For 
what purpose could the enumeration of particular powers be inserted, if these and 
all others were meant to be included in the preceding general power? Nothing is 
more natural nor common than first to use a general phrase, and then to explain 
and qualify it by a recital of particulars. But the idea of an enumeration of 
particulars which neither explain nor qualify the general meaning, and can have no 
other effect than to confound and mislead, is an absurdity, which, as we are 



icii ly uayc aycui i uuuuio 1 1 1 oil uuic i m iu i. v^ui ioli uc cm ici ui u icoc cu uuico uy u ic i uico 

which would justify the construction put on the new Constitution, and they vest in the 
existing Congress a power to legislate in all cases whatsoever. But what would 
have been thought of that assembly if, attaching themselves to these general 
expressions, and disregarding the specifications which ascertain and limit their 
import, they had exercised an unlimited power of providing for the common 
defense and general welfare? I appeal to the objectors themselves, whether they 
would in that case have employed the same reasoning in justification of Congress 
as they now make use of against the convention. How difficult it is for error to 
escape its own condemnation! 

PUBLIUS 



FEDERALIST No. 42. The Powers Conferred by 



to send and receive ambassadors, other public ministers, and consuls; to define 
and punish piracies and felonies committed on the high seas, and offenses 
against the law of nations; to regulate foreign commerce, including a power to 
prohibit, after the year 1808, the importation of slaves, and to lay an intermediate 
duty of ten dollars per head, as a discouragement to such importations. 

This class of powers forms an obvious and essential branch of the federal 
administration. If we are to be one nation in any respect, it clearly ought to be in 
respect to other nations. 

The powers to make treaties and to send and receive ambassadors, speak their 
own propriety. Both of them are comprised in the articles of Confederation, with 
this difference only, that the former is disembarrassed, by the plan of the 
convention, of an exception, under which treaties might be substantially frustrated 
by regulations of the States; and that a power of appointing and receiving "other 
public ministers and consuls," is expressly and very properly added to the former 
provision concerning ambassadors. The term ambassador, if taken strictly, as 
seems to be required by the second of the articles of Confederation, 
comprehends the highest grade only of public ministers, and excludes the grades 
which the United States will be most likely to prefer, where foreign embassies may 



wiiiicu oiaica, vviicic i iu |jicviuuo ucaiy i iao oujjuiaLcu il, occiiio lu nave uccn 

nowhere provided for. A supply of the omission is one of the lesser instances in 
which the convention have improved on the model before them. But the most 
minute provisions become important when they tend to obviate the necessity or 
the pretext for gradual and unobserved usurpations of power. A list of the cases in 
which Congress have been betrayed, or forced by the defects of the 
Confederation, into violations of their chartered authorities, would not a little 
surprise those who have paid no attention to the subject; and would be no 
inconsiderable argument in favor of the new Constitution, which seems to have 
provided no less studiously for the lesser, than the more obvious and striking 
defects of the old. 

The power to define and punish piracies and felonies committed on the high seas, 
and offenses against the law of nations, belongs with equal propriety to the 
general government, and is a still greater improvement on the articles of 
Confederation. These articles contain no provision for the case of offenses 
against the law of nations; and consequently leave it in the power of any indiscreet 
member to embroil the Confederacy with foreign nations. The provision of the 
federal articles on the subject of piracies and felonies extends no further than to 
the establishment of courts for the trial of these offenses. The definition of piracies 



this case was in every respect necessary and proper. 

The regulation of foreign commerce, having fallen within several views which have 
been taken of this subject, has been too fully discussed to need additional proofs 
here of its being properly submitted to the federal administration. 

It were doubtless to be wished, that the power of prohibiting the importation of 
slaves had not been postponed until the year 1808, or rather that it had been 
suffered to have immediate operation. But it is not difficult to account, either for 
this restriction on the general government, or for the manner in which the whole 
clause is expressed. It ought to be considered as a great point gained in favor of 
humanity, that a period of twenty years may terminate forever, within these States, 
a traffic which has so long and so loudly upbraided the barbarism of modern 
policy; that within that period, it will receive a considerable discouragement from 
the federal government, and may be totally abolished, by a concurrence of the few 
States which continue the unnatural traffic, in the prohibitory example which has 
been given by so great a majority of the Union. Happy would it be for the 
unfortunate Africans, if an equal prospect lay before them of being redeemed from 
the oppressions of their European brethren! 



authority of the States, and certain powers of the judicial department; but the 
former are reserved for a distinct class, and the latter will be particularly examined 
when we arrive at the structure and organization of the government. I shall confine 
myself to a cursory review of the remaining powers comprehended under this third 
description, to wit: to regulate commerce among the several States and the Indian 
tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for 
the punishment of counterfeiting the current coin and securities of the United 
States; to fix the standard of weights and measures; to establish a uniform rule of 
naturalization, and uniform laws of bankruptcy, to prescribe the manner in which 
the public acts, records, and judicial proceedings of each State shall be proved, 
and the effect they shall have in other States; and to establish post offices and 
post roads. 

The defect of power in the existing Confederacy to regulate the commerce 
between its several members, is in the number of those which have been clearly 
pointed out by experience. To the proofs and remarks which former papers have 
brought into view on this subject, it may be added that without this supplemental 
provision, the great and essential power of regulating foreign commerce would 
have been incomplete and ineffectual. A very material object of this power was the 



from their uncommercial neighbors, must appear not less impolitic than it is unfair; 
since it would stimulate the injured party, by resentment as well as interest, to 
resort to less convenient channels for their foreign trade. But the mild voice of 
reason, pleading the cause of an enlarged and permanent interest, is but too often 
drowned, before public bodies as well as individuals, by the clamors of an 
impatient avidity for immediate and immoderate gain. 

The necessity of a superintending authority over the reciprocal trade of 
confederated States, has been illustrated by other examples as well as our own. In 
Switzerland, where the Union is so very slight, each canton is obliged to allow to 
merchandises a passage through its jurisdiction into other cantons, without an 
augmentation of the tolls. In Germany it is a law of the empire, that the princes and 
states shall not lay tolls or customs on bridges, rivers, or passages, without the 
consent of the emperor and the diet; though it appears from a quotation in an 
antecedent paper, that the practice in this, as in many other instances in that 
confederacy, has not followed the law, and has produced there the mischiefs 
which have been foreseen here. Among the restraints imposed by the Union of the 
Netherlands on its members, one is, that they shall not establish imposts 
disadvantageous to their neighbors, without the general permission. 



partial sovereignty in the Union, with complete sovereignty in the States; to subvert 
a mathematical axiom, by taking away a part, and letting the whole remain. 

All that need be remarked on the power to coin money, regulate the value thereof, 
and of foreign coin, is, that by providing for this last case, the Constitution has 
supplied a material omission in the articles of Confederation. The authority of the 
existing Congress is restrained to the regulation of coin STRUCK by their own 
authority, or that of the respective States. It must be seen at once that the 
proposed uniformity in the VALUE of the current coin might be destroyed by 
subjecting that of foreign coin to the different regulations of the different States. 

The punishment of counterfeiting the public securities, as well as the current coin, 
is submitted of course to that authority which is to secure the value of both. 

The regulation of weights and measures is transferred from the articles of 
Confederation, and is founded on like considerations with the preceding power of 
regulating coin. 

The dissimilarity in the rules of naturalization has long been remarked as a fault in 
our system, and as laying a foundation for intricate and delicate questions. In the 



State, are entitled, in every other State, to all the privileges of FREE CITIZENS of 
the latter; that is, to greater privileges than they may be entitled to in their own 
State: so that it may be in the power of a particular State, or rather every State is 
laid under a necessity, not only to confer the rights of citizenship in other States 
upon any whom it may admit to such rights within itself, but upon any whom it may 
allow to become inhabitants within its jurisdiction. But were an exposition of the 
term "inhabitants" to be admitted which would confine the stipulated privileges to 
citizens alone, the difficulty is diminished only, not removed. The very improper 
power would still be retained by each State, of naturalizing aliens in every other 
State. In one State, residence for a short term confirms all the rights of citizenship: 
in another, qualifications of greater importance are required. An alien, therefore, 
legally incapacitated for certain rights in the latter, may, by previous residence only 
in the former, elude his incapacity; and thus the law of one State be preposterously 
rendered paramount to the law of another, within the jurisdiction of the other. We 
owe it to mere casualty, that very serious embarrassments on this subject have 
been hitherto escaped. By the laws of several States, certain descriptions of 
aliens, who had rendered themselves obnoxious, were laid under interdicts 
inconsistent not only with the rights of citizenship but with the privilege of 
residence. What would have been the consequence, if such persons, by residence 



ui u icii |jiu|jci iy 1 1 iay nc ui uc iciiiuvcu n nu uiiici ci n oiaica, u iai u ic cajjcuici luy ui 

it seems not likely to be drawn into question. 

The power of prescribing by general laws, the manner in which the public acts, 
records and judicial proceedings of each State shall be proved, and the effect they 
shall have in other States, is an evident and valuable improvement on the clause 
relating to this subject in the articles of Confederation. The meaning of the latter is 
extremely indeterminate, and can be of little importance under any interpretation 
which it will bear. The power here established maybe rendered a very convenient 
instrument of justice, and be particularly beneficial on the borders of contiguous 
States, where the effects liable to justice maybe suddenly and secretly translated, 
in any stage of the process, within a foreign jurisdiction. 

The power of establishing post roads must, in every view, be a harmless power, 
and may, perhaps, by judicious management, become productive of great public 
conveniency. Nothing which tends to facilitate the intercourse between the States 
can be deemed unworthy of the public care. 

PUBLIUS 



MADISON 

To the People of the State of New York: 

THE FOURTH class comprises the following miscellaneous powers: 

1. A power "to promote the progress of science and useful arts, by securing, for a 
limited time, to authors and inventors, the exclusive right to their respective 
writings and discoveries." 

The utility of this power will scarcely be questioned. The copyright of authors has 
been solemnly adjudged, in Great Britain, to be a right of common law. The right to 
useful inventions seems with equal reason to belong to the inventors. The public 
good fully coincides in both cases with the claims of individuals. The States cannot 
separately make effectual provisions for either of the cases, and most of them 
have anticipated the decision of this point, by laws passed at the instance of 
Congress. 

2. "To exercise exclusive legislation, in all cases whatsoever, over such district 



oiaic lui i ipi ci ici luii ly u ic acai ui u ic yuvci i n i ici il, iui |jiulcuuuii hi u ic caciuioc ui 

their duty, might bring on the national councils an imputation of awe or influence, 
equally dishonorable to the government and dissatisfactory to the other members 
of the Confederacy. This consideration has the more weight, as the gradual 
accumulation of public improvements at the stationary residence of the 
government would be both too great a public pledge to be left in the hands of a 
single State, and would create so many obstacles to a removal of the government, 
as still further to abridge its necessary independence. The extent of this federal 
district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. 
And as it is to be appropriated to this use with the consent of the State ceding it; 
as the State will no doubt provide in the compact for the rights and the consent of 
the citizens inhabiting it; as the inhabitants will find sufficient inducements of 
interest to become willing parties to the cession; as they will have had their voice 
in the election of the government which is to exercise authority over them; as a 
municipal legislature for local purposes, derived from their own suffrages, will of 
course be allowed them; and as the authority of the legislature of the State, and of 
the inhabitants of the ceded part of it, to concur in the cession, will be derived from 
the whole people of the State in their adoption of the Constitution, every 
imaginable objection seems to be obviated. 



As treason may be committed against the United States, the authority of the 
United States ought to be enabled to punish it. But as new-fangled and artificial 
treasons have been the great engines by which violent factions, the natural 
offspring of free government, have usually wreaked their alternate malignity on 
each other, the convention have, with great judgment, opposed a barrier to this 
peculiar danger, by inserting a constitutional definition of the crime, fixing the proof 
necessary for conviction of it, and restraining the Congress, even in punishing it, 
from extending the consequences of guilt beyond the person of its author. 

4. "To admit new States into the Union; but no new State shall be formed or 
erected within the jurisdiction of any other State; nor any State be formed by the 
junction of two or more States, or parts of States, without the consent of the 
legislatures of the States concerned, as well as of the Congress." 

In the articles of Confederation, no provision is found on this important subject. 
Canada was to be admitted of right, on her joining in the measures of the United 
States; and the other COLONIES, by which were evidently meant the other British 
colonies, at the discretion of nine States. The eventual establishment of NEW 
STATES seems to have been overlooked by the compilers of that instrument. We 



Lciiiiuiy ui uuici |jiu|JciLy uciuiiyniy iu u ic vjimcu oiaica, vviui a |jiuviou, uiai 

"nothing in the Constitution shall be so construed as to prejudice any claims of the 
United States, or of any particular State." 

This is a power of very great importance, and required by considerations similar to 
those which show the propriety of the former. The proviso annexed is proper in 
itself, and was probably rendered absolutely necessary by jealousies and 
questions concerning the Western territory sufficiently known to the public. 

6. "To guarantee to every State in the Union a republican form of government; to 
protect each of them against invasion; and on application of the legislature, or of 
the executive (when the legislature cannot be convened), against domestic 
violence." 

In a confederacy founded on republican principles, and composed of republican 
members, the superintending government ought clearly to possess authority to 
defend the system against aristocratic or monarchial innovations. The more 
intimate the nature of such a union may be, the greater interest have the members 
in the political institutions of each other; and the greater right to insist that the 
forms of government under which the compact was entered into should be 



pretext for alterations in the State governments, without the concurrence of the 
States themselves. These questions admit of ready answers. If the interposition of 
the general government should not be needed, the provision for such an event will 
be a harmless superfluity only in the Constitution. But who can say what 
experiments maybe produced by the caprice of particular States, by the ambition 
of enterprising leaders, or by the intrigues and influence of foreign powers? To the 
second question it may be answered, that if the general government should 
interpose by virtue of this constitutional authority, it will be, of course, bound to 
pursue the authority. But the authority extends no further than to a GUARANTY of a 
republican form of government, which supposes a pre-existing government of the 
form which is to be guaranteed. As long, therefore, as the existing republican 
forms are continued by the States, they are guaranteed by the federal Constitution. 
Whenever the States may choose to substitute other republican forms, they have a 
right to do so, and to claim the federal guaranty for the latter. The only restriction 
imposed on them is, that they shall not exchange republican for anti republican 
Constitutions; a restriction which, it is presumed, will hardly be considered as a 
grievance. 

A protection against invasion is due from every society to the parts composing it. 



dinuiiy uuiocivco i icio vvcii i icu uo lu uc picpcucu iui ci i iciyci iliccj ui a. nt\c iicuuic 

At first view, it might seem not to square with the republican theory, to suppose, 
either that a majority have not the right, or that a minority will have the force, to 
subvert a government; and consequently, that the federal interposition can never 
be required, but when it would be improper. But theoretic reasoning, in this as in 
most other cases, must be qualified by the lessons of practice. Why may not illicit 
combinations, for purposes of violence, be formed as well by a majority of a State, 
especially a small State as by a majority of a county, or a district of the same 
State; and if the authority of the State ought, in the latter case, to protect the local 
magistracy, ought not the federal authority, in the former, to support the State 
authority? Besides, there are certain parts of the State constitutions which are so 
interwoven with the federal Constitution, that a violent blow cannot be given to the 
one without communicating the wound to the other. Insurrections in a State will 
rarely induce a federal interposition, unless the number concerned in them bear 
some proportion to the friends of government. It will be much better that the 
violence in such cases should be repressed by the superintending power, than that 
the majority should be left to maintain their cause by a bloody and obstinate 
contest. The existence of a right to interpose, will generally prevent the necessity of 
exerting it. 



auucooiui i ui ancii icoiuci no, ui a uaouai uuiiuuuioc ui auvci iiuicio, ui ui u iuoc 

whom the constitution of the State has not admitted to the rights of suffrage? I take 
no notice of an unhappy species of population abounding in some of the States, 
who, during the calm of regular government, are sunk below the level of men; but 
who, in the tempestuous scenes of civil violence, may emerge into the human 
character, and give a superiority of strength to any party with which they may 
associate themselves. 

In cases where it may be doubtful on which side justice lies, what better umpires 
could be desired by two violent factions, flying to arms, and tearing a State to 
pieces, than the representatives of confederate States, not heated by the local 
flame? To the impartiality of judges, they would unite the affection of friends. 
Happy would it be if such a remedy for its infirmities could be enjoyed by all free 
governments; if a project equally effectual could be established for the universal 
peace of mankind! 

Should it be asked, what is to be the redress for an insurrection pervading all the 
States, and comprising a superiority of the entire force, though not a constitutional 
right? the answer must be, that such a case, as it would be without the compass of 
human remedies, so it is fortunately not within the compass of human probability; 



This can only be considered as a declaratory proposition; and may have been 
inserted, among other reasons, for the satisfaction of the foreign creditors of the 
United States, who cannot be strangers to the pretended doctrine, that a change in 
the political form of civil society has the magical effect of dissolving its moral 
obligations. 

Among the lesser criticisms which have been exercised on the Constitution, it has 
been remarked that the validity of engagements ought to have been asserted in 
favor of the United States, as well as against them; and in the spirit which usually 
characterizes little critics, the omission has been transformed and magnified into a 
plot against the national rights. The authors of this discovery may be told, what few 
others need to be informed of, that as engagements are in their nature reciprocal, 
an assertion of their validity on one side, necessarily involves a validity on the 
other side; and that as the article is merely declaratory, the establishment of the 
principle in one case is sufficient for every case. They may be further told, that 
every constitution must limit its precautions to dangers that are not altogether 
imaginary; and that no real danger can exist that the government would DARE, 
with, or even without, this constitutional declaration before it, to remit the debts 



the experience on one side, or on the other. The exception in favor of the equality 
of suffrage in the Senate, was probably meant as a palladium to the residuary 
sovereignty of the States, implied and secured by that principle of representation 
in one branch of the legislature; and was probably insisted on by the States 
particularly attached to that equality. The other exception must have been admitted 
on the same considerations which produced the privilege defended by it. 

9. "The ratification of the conventions of nine States shall be sufficient for the 
establishment of this Constitution between the States, ratifying the same." 

This article speaks for itself. The express authority of the people alone could give 
due validity to the Constitution. To have required the unanimous ratification of the 
thirteen States, would have subjected the essential interests of the whole to the 
caprice or corruption of a single member. It would have marked a want of foresight 
in the convention, which our own experience would have rendered inexcusable. 

Two questions of a very delicate nature present themselves on this occasion: 1. 
On what principle the Confederation, which stands in the solemn form of a 
compact among the States, can be superseded without the unanimous consent of 
the parties to it? 2. What relation is to subsist between the nine or more States 



ocu i ic oicu luai u. aa uui i i|jaoi ucivvcci i n lucpci iuci n auvciciyi 10, iuuiiucu ui i uiuii laiy 

acts of legislative authority, can pretend to no higher validity than a league or treaty 
between the parties. It is an established doctrine on the subject of treaties, that all 
the articles are mutually conditions of each other; that a breach of any one article is 
a breach of the whole treaty; and that a breach, committed by either of the parties, 
absolves the others, and authorizes them, if they please, to pronounce the 
compact violated and void. Should it unhappily be necessary to appeal to these 
delicate truths for a justification for dispensing with the consent of particular States 
to a dissolution of the federal pact, will not the complaining parties find it a difficult 
task to answer the MULTIPLIED and IMPORTANT infractions with which they may 
be confronted? The time has been when it was incumbent on us all to veil the 
ideas which this paragraph exhibits. The scene is now changed, and with it the 
part which the same motives dictate. 

The second question is not less delicate; and the flattering prospect of its being 
merely hypothetical forbids an overcurious discussion of it. It is one of those cases 
which must be left to provide for itself. In general, it may be observed, that although 
no political relation can subsist between the assenting and dissenting States, yet 
the moral relations will remain uncancelled. The claims of justice, both on one side 
and on the other, will be in force, and must be fulfilled; the rights of humanity must 



FEDERALIST No. 44. Restrictions on the 
Authority of the Several States 

From the New York Packet. Friday, January 25, 1788. 

MADISON 

To the People of the State of New York: 

A FIFTH class of provisions in favor of the federal authority consists of the 
following restrictions on the authority of the several States: 

1. "No State shall enter into any treaty, alliance, or confederation; grant letters of 
marque and reprisal; coin money; emit bills of credit; make anything but gold and 
silver a legal tender in payment of debts; pass any bill of attainder, ex post facto 
law, or law impairing the obligation of contracts; or grant any title of nobility." 



iiic iii)iii ui uuiiiiiil) iiiuiicy, vviiiuiiio iicic Ldt\ci i iiuiii u ic oiaico, vvao icu m i u icii 

hands by the Confederation, as a concurrent right with that of Congress, under an 
exception in favor of the exclusive right of Congress to regulate the alloy and value. 
In this instance, also, the new provision is an improvement on the old. Whilst the 
alloy and value depended on the general authority, a right of coinage in the 
particular States could have no other effect than to multiply expensive mints and 
diversify the forms and weights of the circulating pieces. The latter inconveniency 
defeats one purpose for which the power was originally submitted to the federal 
head; and as far as the former might prevent an inconvenient remittance of gold 
and silver to the central mint for recoinage, the end can be as well attained by local 
mints established under the general authority. 

The extension of the prohibition to bills of credit must give pleasure to every 
citizen, in proportion to his love of justice and his knowledge of the true springs of 
public prosperity. The loss which America has sustained since the peace, from the 
pestilent effects of paper money on the necessary confidence between man and 
man, on the necessary confidence in the public councils, on the industry and 
morals of the people, and on the character of republican government, constitutes 
an enormous debt against the States chargeable with this unadvised measure, 
which must long remain unsatisfied; or rather an accumulation of guilt, which can 



member. No one of these mischiefs is less incident to a power in the States to 
emit paper money, than to coin gold or silver. The power to make any thing but 
gold and silver a tender in payment of debts, is withdrawn from the States, on the 
same principle with that of issuing a paper currency. 

Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, 
are contrary to the first principles of the social compact, and to every principle of 
sound legislation. The two former are expressly prohibited by the declarations 
prefixed to some of the State constitutions, and all of them are prohibited by the 
spirit and scope of these fundamental charters. Our own experience has taught us, 
nevertheless, that additional fences against these dangers ought not to be 
omitted. Very properly, therefore, have the convention added this constitutional 
bulwark in favor of personal security and private rights; and I am much deceived if 
they have not, in so doing, as faithfully consulted the genuine sentiments as the 
undoubted interests of their constituents. The sober people of America are weary 
of the fluctuating policy which has directed the public councils. They have seen with 
regret and indignation that sudden changes and legislative interferences, in cases 
affecting personal rights, become jobs in the hands of enterprising and influential 
speculators, and snares to the more-industrious and less-informed part of the 



iiii|juilo ui ctajjuilo, C3i iciii uc iui u ic uoc ui li ic ucaouiy ui li ic wiiilcu oiaica, cii iu an 

such laws shall be subject to the revision and control of the Congress. No State 
shall, without the consent of Congress, lay any duty on tonnage, keep troops or 
ships of war in time of peace, enter into any agreement or compact with another 
State, or with a foreign power, or engage in war unless actually invaded, or in such 
imminent danger as will not admit of delay." 

The restraint on the power of the States over imports and exports is enforced by all 
the arguments which prove the necessity of submitting the regulation of trade to 
the federal councils. It is needless, therefore, to remark further on this head, than 
that the manner in which the restraint is qualified seems well calculated at once to 
secure to the States a reasonable discretion in providing for the conveniency of 
their imports and exports, and to the United States a reasonable check against the 
abuse of this discretion. The remaining particulars of this clause fall within 
reasonings which are either so obvious, or have been so fully developed, that they 
may be passed over without remark. 

The SIXTH and last class consists of the several powers and provisions by which 
efficacy is given to all the rest. 



There are four other possible methods which the Constitution might have taken on 
this subject. They might have copied the second article of the existing 
Confederation, which would have prohibited the exercise of any power not 
EXPRESSLY delegated; they might have attempted a positive enumeration of the 
powers comprehended under the general terms "necessary and proper"; they 
might have attempted a negative enumeration of them, by specifying the powers 
excepted from the general definition; they might have been altogether silent on the 
subject, leaving these necessary and proper powers to construction and inference. 

Had the convention taken the first method of adopting the second article of 
Confederation, it is evident that the new Congress would be continually exposed, 
as their predecessors have been, to the alternative of construing the term 
"EXPRESSLY 1 with so much rigor, as to disarm the government of all real 
authority whatever, or with so much latitude as to destroy altogether the force of the 
restriction. It would be easy to show, if it were necessary, that no important power, 
delegated by the articles of Confederation, has been or can be executed by 
Congress, without recurring more or less to the doctrine of CONSTRUCTION or 
IMPLICATION. As the powers delegated under the new system are more 
extensive, the government which is to administer it would find itself still more 



uc unci i uiuuci ly vai icu vvi moi u ic uujcui ici i icui io li ic ocu i ic. 

Had they attempted to enumerate the particular powers or means not necessary or 
proper for carrying the general powers into execution, the task would have been no 
less chimerical; and would have been liable to this further objection, that every 
defect in the enumeration would have been equivalent to a positive grant of 
authority. If, to avoid this consequence, they had attempted a partial enumeration 
of the exceptions, and described the residue by the general terms, NOT 
NECESSARY OR PROPER, it must have happened that the enumeration would 
comprehend a few of the excepted powers only; that these would be such as 
would be least likely to be assumed or tolerated, because the enumeration would 
of course select such as would be least necessary or proper; and that the 
unnecessary and improper powers included in the residuum, would be less forcibly 
excepted, than if no partial enumeration had been made. 

Had the Constitution been silent on this head, there can be no doubt that all the 
particular powers requisite as means of executing the general powers would have 
resulted to the government, by unavoidable implication. No axiom is more clearly 
established in law, or in reason, than that wherever the end is required, the means 
are authorized; wherever a general power to do a thing is given, every particular 



OICUC ICLjIOICllUI CO Ol IUUIU VIUICILC LI IC II ICOkJC^LIVC L.UI DlllUUUI lai aULIIUIIUCd. II I LI IC 

first instance, the success of the usurpation will depend on the executive and 
judiciary departments, which are to expound and give effect to the legislative acts; 
and in the last resort a remedy must be obtained from the people who can, by the 
election of more faithful representatives, annul the acts of the usurpers. The truth is, 
that this ultimate redress may be more confided in against unconstitutional acts of 
the federal than of the State legislatures, for this plain reason, that as every such 
act of the former will be an invasion of the rights of the latter, these will be ever 
ready to mark the innovation, to sound the alarm to the people, and to exert their 
local influence in effecting a change of federal representatives. There being no 
such intermediate body between the State legislatures and the people interested 
in watching the conduct of the former, violations of the State constitutions are more 
likely to remain unnoticed and unredressed. 

2. "This Constitution and the laws of the United States which shall be made in 
pursuance thereof, and all treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme law of the land, and the judges 
in every State shall be bound thereby, anything in the constitution or laws of any 
State to the contrary notwithstanding." 



(JICUCUCOOUIO. 

In the next place, as the constitutions of some of the States do not even expressly 
and fully recognize the existing powers of the Confederacy, an express saving of 
the supremacy of the former would, in such States, have brought into question 
every power contained in the proposed Constitution. 

In the third place, as the constitutions of the States differ much from each other, it 
might happen that a treaty or national law, of great and equal importance to the 
States, would interfere with some and not with other constitutions, and would 
consequently be valid in some of the States, at the same time that it would have no 
effect in others. 

In fine, the world would have seen, for the first time, a system of government 
founded on an inversion of the fundamental principles of all government; it would 
have seen the authority of the whole society every where subordinate to the 
authority of the parts; it would have seen a monster, in which the head was under 
the direction of the members. 

3. "The Senators and Representatives, and the members of the several State 
legislatures, and all executive and judicial officers, both of the United States and 



effect to the federal Constitution. The election of the President and Senate will 
depend, in all cases, on the legislatures of the several States. And the election of 
the House of Representatives will equally depend on the same authority in the first 
instance; and will, probably, forever be conducted by the officers, and according to 
the laws, of the States. 

4. Among the provisions for giving efficacy to the federal powers might be added 
those which belong to the executive and judiciary departments: but as these are 
reserved for particular examination in another place, I pass them over in this. 

We have now reviewed, in detail, all the articles composing the sum or quantity of 
power delegated by the proposed Constitution to the federal government, and are 
brought to this undeniable conclusion, that no part of the power is unnecessary or 
improper for accomplishing the necessary objects of the Union. The question, 
therefore, whether this amount of power shall be granted or not, resolves itself into 
another question, whether or not a government commensurate to the exigencies of 
the Union shall be established; or, in other words, whether the Union itself shall be 
preserved. 



Considered For the Independent Journal. Saturday, January 

26, 1788 



MADISON 

To the People of the State of New York: 

HAVING shown that no one of the powers transferred to the federal government is 
unnecessary or improper, the next question to be considered is, whether the whole 
mass of them will be dangerous to the portion of authority left in the several States. 

The adversaries to the plan of the convention, instead of considering in the first 
place what degree of power was absolutely necessary for the purposes of the 
federal government, have exhausted themselves in a secondary inquiry into the 
possible consequences of the proposed degree of power to the governments of 
the particular States. But if the Union, as has been shown, be essential to the 
security of the people of America against foreign danger; if it be essential to their 
security against contentions and wars among the different States; if it be essential 



arrayed with certain dignities and attributes of sovereignty? We have heard of the 
impious doctrine in the Old World, that the people were made for kings, not kings 
for the people. Is the same doctrine to be revived in the New, in another shape that 
the solid happiness of the people is to be sacrificed to the views of political 
institutions of a different form? It is too early for politicians to presume on our 
forgetting that the public good, the real welfare of the great body of the people, is 
the supreme object to be pursued; and that no form of government whatever has 
any other value than as it may be fitted for the attainment of this object. Were the 
plan of the convention adverse to the public happiness, my voice would be, Reject 
the plan. Were the Union itself inconsistent with the public happiness, it would be, 
Abolish the Union. In like manner, as far as the sovereignty of the States cannot be 
reconciled to the happiness of the people, the voice of every good citizen must be, 
Let the former be sacrificed to the latter. How far the sacrifice is necessary, has 
been shown. How far the unsacrificed residue will be endangered, is the question 
before us. 

Several important considerations have been touched in the course of these 
papers, which discountenance the supposition that the operation of the federal 
government will by degrees prove fatal to the State governments. The more I 



icayuc iL 10 |jiuuauic uiai u ic icucicu ncau i lau a ucyicc cu iu o|jcuico ui |juvvci, 

which gave it a considerable likeness to the government framed by the convention. 
The Lycian Confederacy, as far as its principles and form are transmitted, must 
have borne a still greater analogy to it. Yet history does not inform us that either of 
them ever degenerated, or tended to degenerate, into one consolidated 
government. On the contrary, we know that the ruin of one of them proceeded from 
the incapacity of the federal authority to prevent the dissensions, and finally the 
disunion, of the subordinate authorities. These cases are the more worthy of our 
attention, as the external causes by which the component parts were pressed 
together were much more numerous and powerful than in our case; and 
consequently less powerful ligaments within would be sufficient to bind the 
members to the head, and to each other. 

In the feudal system, we have seen a similar propensity exemplified. 
Notwithstanding the want of proper sympathy in every instance between the local 
sovereigns and the people, and the sympathy in some instances between the 
general sovereign and the latter, it usually happened that the local sovereigns 
prevailed in the rivalship for encroachments. Had no external dangers enforced 
internal harmony and subordination, and particularly, had the local sovereigns 
possessed the affections of the people, the great kingdoms in Europe would at 



organization of the former. Without the intervention of the State legislatures, the 
President of the United States cannot be elected at all. They must in all cases 
have a great share in his appointment, and will, perhaps, in most cases, of 
themselves determine it. The Senate will be elected absolutely and exclusively by 
the State legislatures. Even the House of Representatives, though drawn 
immediately from the people, will be chosen very much under the influence of that 
class of men, whose influence over the people obtains for themselves an election 
into the State legislatures. Thus, each of the principal branches of the federal 
government will owe its existence more or less to the favor of the State 
governments, and must consequently feel a dependence, which is much more 
likely to beget a disposition too obsequious than too overbearing towards them. 
On the other side, the component parts of the State governments will in no 
instance be indebted for their appointment to the direct agency of the federal 
government, and very little, if at all, to the local influence of its members. 

The number of individuals employed under the Constitution of the United States 
will be much smaller than the number employed under the particular States. There 
will consequently be less of personal influence on the side of the former than of the 
latter. The members of the legislative, executive, and judiciary departments of 



may pronounce the advantage of the States to be decisive. If the federal 
government is to have collectors of revenue, the State governments will have theirs 
also. And as those of the former will be principally on the seacoast, and not very 
numerous, whilst those of the latter will be spread over the face of the country, and 
will be very numerous, the advantage in this view also lies on the same side. It is 
true, that the Confederacy is to possess, and may exercise, the power of collecting 
internal as well as external taxes throughout the States; but it is probable that this 
power will not be resorted to, except for supplemental purposes of revenue; that an 
option will then be given to the States to supply their quotas by previous collections 
of their own; and that the eventual collection, under the immediate authority of the 
Union, will generally be made by the officers, and according to the rules, appointed 
by the several States. Indeed it is extremely probable, that in other instances, 
particularly in the organization of the judicial power, the officers of the States will 
be clothed with the correspondent authority of the Union. Should it happen, 
however, that separate collectors of internal revenue should be appointed under 
the federal government, the influence of the whole number would not bear a 
comparison with that of the multitude of State officers in the opposite scale. Within 
every district to which a federal collector would be allotted, there would not be less 
than thirty or forty, or even more, officers of different descriptions, and many of 



The operations of the federal government will be most extensive and important in 
times of war and danger; those of the State governments, in times of peace and 
security. As the former periods will probably bear a small proportion to the latter, 
the State governments will here enjoy another advantage over the federal 
government. The more adequate, indeed, the federal powers may be rendered to 
the national defense, the less frequent will be those scenes of danger which might 
favor their ascendancy over the governments of the particular States. 

If the new Constitution be examined with accuracy and candor, it will be found that 
the change which it proposes consists much less in the addition of NEW 
POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The 
regulation of commerce, it is true, is a new power; but that seems to be an 
addition which few oppose, and from which no apprehensions are entertained. 
The powers relating to war and peace, armies and fleets, treaties and finance, 
with the other more considerable powers, are all vested in the existing Congress 
by the articles of Confederation. The proposed change does not enlarge these 
powers; it only substitutes a more effectual mode of administering them. The 
change relating to taxation may be regarded as the most important; and yet the 
present Congress have as complete authority to REQUIRE of the States indefinite 



PUBLIUS 



FEDERALIST No. 46. The Influence of the State 
and Federal Governments Compared 

From the New York Packet. Tuesday, January 29, 1788. 

MADISON 

To the People of the State of New York: 

RESUMING the subject of the last paper, I proceed to inquire whether the federal 



gentlemen must here be reminded of their error. They must be told that the ultimate 
authority, wherever the derivative may be found, resides in the people alone, and 
that it will not depend merely on the comparative ambition or address of the 
different governments, whether either, or which of them, will be able to enlarge its 
sphere of jurisdiction at the expense of the other. Truth, no less than decency, 
requires that the event in every case should be supposed to depend on the 
sentiments and sanction of their common constituents. 

Many considerations, besides those suggested on a former occasion, seem to 
place it beyond doubt that the first and most natural attachment of the people will 
be to the governments of their respective States. Into the administration of these a 
greater number of individuals will expect to rise. From the gift of these a greater 
number of offices and emoluments will flow. By the superintending care of these, 
all the more domestic and personal interests of the people will be regulated and 
provided for. With the affairs of these, the people will be more familiarly and 
minutely conversant. And with the members of these, will a greater proportion of 
the people have the ties of personal acquaintance and friendship, and of family 
and party attachments; on the side of these, therefore, the popular bias may well 
be expected most strongly to incline. 



powers and importance was the side usually taken by the men who wished to build 
their political consequence on the prepossessions of their fellow-citizens. 

If, therefore, as has been elsewhere remarked, the people should in future become 
more partial to the federal than to the State governments, the change can only 
result from such manifest and irresistible proofs of a better administration, as will 
overcome all their antecedent propensities. And in that case, the people ought not 
surely to be precluded from giving most of their confidence where they may 
discover it to be most due; but even in that case the State governments could have 
little to apprehend, because it is only within a certain sphere that the federal power 
can, in the nature of things, be advantageously administered. 

The remaining points on which I propose to compare the federal and State 
governments, are the disposition and the faculty they may respectively possess, to 
resist and frustrate the measures of each other. 

It has been already proved that the members of the federal will be more dependent 
on the members of the State governments, than the latter will be on the former. It 
has appeared also, that the prepossessions of the people, on whom both will 
depend, will be more on the side of the State governments, than of the federal 



particular and separate views of the counties or districts in which they reside. And 
if they do not sufficiently enlarge their policy to embrace the collective welfare of 
their particular State, how can it be imagined that they will make the aggregate 
prosperity of the Union, and the dignity and respectability of its government, the 
objects of their affections and consultations? For the same reason that the 
members of the State legislatures will be unlikely to attach themselves sufficiently 
to national objects, the members of the federal legislature will be likely to attach 
themselves too much to local objects. The States will be to the latter what counties 
and towns are to the former. Measures will too often be decided according to their 
probable effect, not on the national prosperity and happiness, but on the 
prejudices, interests, and pursuits of the governments and people of the individual 
States. What is the spirit that has in general characterized the proceedings of 
Congress? A perusal of their journals, as well as the candid acknowledgments of 
such as have had a seat in that assembly, will inform us, that the members have 
but too frequently displayed the character, rather of partisans of their respective 
States, than of impartial guardians of a common interest; that where on one 
occasion improper sacrifices have been made of local considerations, to the 
aggrandizement of the federal government, the great interests of the nation have 
suffered on a hundred, from an undue attention to the local prejudices, interests, 



li ic lauci vvuuiu ouii i lave u ic ciuvcii nayc 111 u ic iiicaiio ui ucicciuiiy ouui i 

encroachments. If an act of a particular State, though unfriendly to the national 
government, be generally popular in that State and should not too grossly violate 
the oaths of the State officers, it is executed immediately and, of course, by means 
on the spot and depending on the State alone. The opposition of the federal 
government, or the interposition of federal officers, would but inflame the zeal of all 
parties on the side of the State, and the evil could not be prevented or repaired, if 
at all, without the employment of means which must always be resorted to with 
reluctance and difficulty. On the other hand, should an unwarrantable measure of 
the federal government be unpopular in particular States, which would seldom fail 
to be the case, or even a warrantable measure be so, which may sometimes be 
the case, the means of opposition to it are powerful and at hand. The disquietude 
of the people; their repugnance and, perhaps, refusal to co-operate with the 
officers of the Union; the frowns of the executive magistracy of the State; the 
embarrassments created by legislative devices, which would often be added on 
such occasions, would oppose, in any State, difficulties not to be despised; would 
form, in a large State, very serious impediments; and where the sentiments of 
several adjoining States happened to be in unison, would present obstructions 
which the federal government would hardly be willing to encounter. 



The more numerous part invaded the rights of the less numerous part. The attempt 
was unjust and unwise; but it was not in speculation absolutely chimerical. But what 
would be the contest in the case we are supposing? Who would be the parties? A 
few representatives of the people would be opposed to the people themselves; or 
rather one set of representatives would be contending against thirteen sets of 
representatives, with the whole body of their common constituents on the side of 
the latter. 

The only refuge left for those who prophesy the downfall of the State governments 
is the visionary supposition that the federal government may previously 
accumulate a military force for the projects of ambition. The reasonings contained 
in these papers must have been employed to little purpose indeed, if it could be 
necessary now to disprove the reality of this danger. That the people and the 
States should, for a sufficient period of time, elect an uninterrupted succession of 
men ready to betray both; that the traitors should, throughout this period, uniformly 
and systematically pursue some fixed plan for the extension of the military 
establishment; that the governments and the people of the States should silently 
and patiently behold the gathering storm, and continue to supply the materials, until 
it should be prepared to burst on their own heads, must appear to every one more 



to near half a million of citizens with arms in their hands, officered by men chosen 
from among themselves, fighting for their common liberties, and united and 
conducted by governments possessing their affections and confidence. It may well 
be doubted, whether a militia thus circumstanced could ever be conquered by 
such a proportion of regular troops. Those who are best acquainted with the last 
successful resistance of this country against the British arms, will be most inclined 
to deny the possibility of it. Besides the advantage of being armed, which the 
Americans possess over the people of almost every other nation, the existence of 
subordinate governments, to which the people are attached, and by which the 
militia officers are appointed, forms a barrier against the enterprises of ambition, 
more insurmountable than any which a simple government of any form can admit 
of. Notwithstanding the military establishments in the several kingdoms of Europe, 
which are carried as far as the public resources will bear, the governments are 
afraid to trust the people with arms. And it is not certain, that with this aid alone 
they would not be able to shake off their yokes. But were the people to possess 
the additional advantages of local governments chosen by themselves, who could 
collect the national will and direct the national force, and of officers appointed out 
of the militia, by these governments, and attached both to them and to the militia, it 
may be affirmed with the greatest assurance, that the throne of every tyranny in 



LU UC UUI IOLI UUICU Will ICIIUCI IL OUI II UICI ILiy UCfJCIIUCIIL UN LI IC |JCU|JIC, Ul ILVVIIIIIUL. 

On the first supposition, it will be restrained by that dependence from forming 
schemes obnoxious to their constituents. On the other supposition, it will not 
possess the confidence of the people, and its schemes of usurpation will be easily 
defeated by the State governments, who will be supported by the people. 

On summing up the considerations stated in this and the last paper, they seem to 
amount to the most convincing evidence, that the powers proposed to be lodged 
in the federal government are as little formidable to those reserved to the 
individual States, as they are indispensably necessary to accomplish the 
purposes of the Union; and that all those alarms which have been sounded, of a 
meditated and consequential annihilation of the State governments, must, on the 
most favorable interpretation, be ascribed to the chimerical fears of the authors of 
them. 

PUBLIUS 



To the People of the State of New York: 

HAVING reviewed the general form of the proposed government and the general 
mass of power allotted to it, I proceed to examine the particular structure of this 
government, and the distribution of this mass of power among its constituent parts. 

One of the principal objections inculcated by the more respectable adversaries to 
the Constitution, is its supposed violation of the political maxim, that the legislative, 
executive, and judiciary departments ought to be separate and distinct. In the 
structure of the federal government, no regard, it is said, seems to have been paid 
to this essential precaution in favor of liberty. The several departments of power 
are distributed and blended in such a manner as at once to destroy all symmetry 
and beauty of form, and to expose some of the essential parts of the edifice to the 
danger of being crushed by the disproportionate weight of other parts. 

No political truth is certainly of greater intrinsic value, or is stamped with the 
authority of more enlightened patrons of liberty, than that on which the objection is 
founded. The accumulation of all powers, legislative, executive, and judiciary, in 
the same hands, whether of one, a few, or many, and whether hereditary, self- 



iiic uiauc vvi iu 10 cuvvayo uui iouiicu ol\ iu uiicu ui i u no ouujcul io uic ocicuiaicu 

Montesquieu. If he be not the author of this invaluable precept in the science of 
politics, he has the merit at least of displaying and recommending it most 
effectually to the attention of mankind. Let us endeavor, in the first place, to 
ascertain his meaning on this point. 

The British Constitution was to Montesquieu what Homer has been to the didactic 
writers on epic poetry. As the latter have considered the work of the immortal bard 
as the perfect model from which the principles and rules of the epic art were to be 
drawn, and by which all similar works were to be judged, so this great political 
critic appears to have viewed the Constitution of England as the standard, or to 
use his own expression, as the mirror of political liberty; and to have delivered, in 
the form of elementary truths, the several characteristic principles of that particular 
system. That we may be sure, then, not to mistake his meaning in this case, let us 
recur to the source from which the maxim was drawn. 

On the slightest view of the British Constitution, we must perceive that the 
legislative, executive, and judiciary departments are by no means totally separate 
and distinct from each other. The executive magistrate forms an integral part of the 
legislative authority. He alone has the prerogative of making treaties with foreign 



muni U ico c iaoio, uy vviiiuii iviui ilcol|uicu vvao yuiucu, il may uicai ly uc n nci icu 

that, in saying "There can be no liberty where the legislative and executive powers 
are united in the same person, or body of magistrates," or, "if the power of judging 
be not separated from the legislative and executive powers," he did not mean that 
these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, 
the acts of each other. His meaning, as his own words import, and still more 
conclusively as illustrated by the example in his eye, can amount to no more than 
this, that where the WHOLE power of one department is exercised by the same 
hands which possess the WHOLE power of another department, the fundamental 
principles of a free constitution are subverted. This would have been the case in 
the constitution examined by him, if the king, who is the sole executive magistrate, 
had possessed also the complete legislative power, or the supreme 
administration of justice; or if the entire legislative body had possessed the 
supreme judiciary, or the supreme executive authority. This, however, is not among 
the vices of that constitution. The magistrate in whom the whole executive power 
resides cannot of himself make a law, though he can put a negative on every law; 
nor administer justice in person, though he has the appointment of those who do 
administer it. The judges can exercise no executive prerogative, though they are 
shoots from the executive stock; nor any legislative function, though they may be 



ciuuicri ici ioiui 10 1 1 lay cuioc icoi int. o/-\ivit iiiuiiciil.ii ui csciicuc oi iuuiu i-imaaui 

tyrannical laws to EXECUTE them in a tyrannical manner." Again: "Were the 
power of judging joined with the legislative, the life and liberty of the subject would 
be exposed to arbitrary control, for THE JUDGE would then be THE 
LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave 
with all the violence of AN OPPRESSOR." Some of these reasons are more fully 
explained in other passages; but briefly stated as they are here, they sufficiently 
establish the meaning which we have put on this celebrated maxim of this 
celebrated author. 

If we look into the constitutions of the several States, we find that, notwithstanding 
the emphatical and, in some instances, the unqualified terms in which this axiom 
has been laid down, there is not a single instance in which the several 
departments of power have been kept absolutely separate and distinct. New 
Hampshire, whose constitution was the last formed, seems to have been fully 
aware of the impossibility and inexpediency of avoiding any mixture whatever of 
these departments, and has qualified the doctrine by declaring "that the legislative, 
executive, and judiciary powers ought to be kept as separate from, and 
independent of, each other AS THE NATURE OF A FREE GOVERNMENT WILL 
ADMIT; OR AS IS CONSISTENT WITH THAT CHAIN OF CONNECTION THAT 



The constitution of Massachusetts has observed a sufficient though less pointed 
caution, in expressing this fundamental article of liberty. It declares "that the 
legislative department shall never exercise the executive and judicial powers, or 
either of them; the executive shall never exercise the legislative and judicial 
powers, or either of them; the judicial shall never exercise the legislative and 
executive powers, or either of them." This declaration corresponds precisely with 
the doctrine of Montesquieu, as it has been explained, and is not in a single point 
violated by the plan of the convention. It goes no farther than to prohibit any one of 
the entire departments from exercising the powers of another department. In the 
very Constitution to which it is prefixed, a partial mixture of powers has been 
admitted. The executive magistrate has a qualified negative on the legislative 
body, and the Senate, which is a part of the legislature, is a court of impeachment 
for members both of the executive and judiciary departments. The members of the 
judiciary department, again, are appointable by the executive department, and 
removable by the same authority on the address of the two legislative branches. 
Lastly, a number of the officers of government are annually appointed by the 
legislative department. As the appointment to offices, particularly executive 
offices, is in its nature an executive function, the compilers of the Constitution 



of the legislative are associated with the executive authority, in the appointment of 
officers, both executive and judiciary. And its court for the trial of impeachments 
and correction of errors is to consist of one branch of the legislature and the 
principal members of the judiciary department. 

The constitution of New Jersey has blended the different powers of government 
more than any of the preceding. The governor, who is the executive magistrate, is 
appointed by the legislature; is chancellor and ordinary, or surrogate of the State; 
is a member of the Supreme Court of Appeals, and president, with a casting vote, 
of one of the legislative branches. The same legislative branch acts again as 
executive council of the governor, and with him constitutes the Court of Appeals. 
The members of the judiciary department are appointed by the legislative 
department and removable by one branch of it, on the impeachment of the other. 

According to the constitution of Pennsylvania, the president, who is the head of the 
executive department, is annually elected by a vote in which the legislative 
department predominates. In conjunction with an executive council, he appoints 
the members of the judiciary department, and forms a court of impeachment for 
trial of all officers, judiciary as well as executive. The judges of the Supreme Court 



OCU I IC LI I I IC UC JUOLIUCO Ul LI IC LlCat/C, III LI MO OLCLLC, LI IC I I ICI I IUCI O Ul Ul IC UiailLIIUI IL 

are EX-OFFICIO justices of the peace; as are also the members of the executive 
council. The principal officers of the executive department are appointed by the 
legislative; and one branch of the latter forms a court of impeachments. All officers 
may be removed on address of the legislature. 

Maryland has adopted the maxim in the most unqualified terms; declaring that the 
legislative, executive, and judicial powers of government ought to be forever 
separate and distinct from each other. Her constitution, notwithstanding, makes 
the executive magistrate appointable by the legislative department; and the 
members of the judiciary by the executive department. 

The language of Virginia is still more pointed on this subject. Her constitution 
declares, "that the legislative, executive, and judiciary departments shall be 
separate and distinct; so that neither exercise the powers properly belonging to 
the other; nor shall any person exercise the powers of more than one of them at the 
same time, except that the justices of county courts shall be eligible to either 
House of Assembly." Yet we find not only this express exception, with respect to 
the members of the inferior courts, but that the chief magistrate, with his executive 
council, are appointable by the legislature; that two members of the latter are 



legislative department. It gives to the latter, also, the appointment of the members 
of the judiciary department, including even justices of the peace and sheriffs; and 
the appointment of officers in the executive department, down to captains in the 
army and navy of the State. 

In the constitution of Georgia, where it is declared "that the legislative, executive, 
and judiciary departments shall be separate and distinct, so that neither exercise 
the powers properly belonging to the other," we find that the executive department 
is to be filled by appointments of the legislature; and the executive prerogative of 
pardon to be finally exercised by the same authority. Even justices of the peace 
are to be appointed by the legislature. 

In citing these cases, in which the legislative, executive, and judiciary departments 
have not been kept totally separate and distinct, I wish not to be regarded as an 
advocate for the particular organizations of the several State governments. I am 
fully aware that among the many excellent principles which they exemplify, they 
carry strong marks of the haste, and still stronger of the inexperience, under which 
they were framed. It is but too obvious that in some instances the fundamental 
principle under consideration has been violated by too great a mixture, and even 



FEDERALIST No. 48. These Departments Should 
Not Be So Far Separated as to Have No 
Constitutional Control Over Each Other. 

From the New York Packet. Friday, February 1, 1788. 

MADISON 

To the People of the State of New York: 

IT WAS shown in the last paper that the political apothegm there examined does 
not require that the legislative, executive, and judiciary departments should be 
wholly unconnected with each other. I shall undertake, in the next place, to show 
that unless these departments be so far connected and blended as to give to each 



(juvvci , ao u icy may in uicn iicuuic uc icyioiau vc, cacuuuvc, ui juuiuiaiy, u ic i ical 

and most difficult task is to provide some practical security for each, against the 
invasion of the others. What this security ought to be, is the great problem to be 
solved. 

Will it be sufficient to mark, with precision, the boundaries of these departments, in 
the constitution of the government, and to trust to these parchment barriers against 
the encroaching spirit of power? This is the security which appears to have been 
principally relied on by the compilers of most of the American constitutions. But 
experience assures us, that the efficacy of the provision has been greatly 
overrated; and that some more adequate defense is indispensably necessary for 
the more feeble, against the more powerful, members of the government. The 
legislative department is everywhere extending the sphere of its activity, and 
drawing all power into its impetuous vortex. 

The founders of our republics have so much merit for the wisdom which they have 
displayed, that no task can be less pleasing than that of pointing out the errors into 
which they have fallen. A respect for truth, however, obliges us to remark, that they 
seem never for a moment to have turned their eyes from the danger to liberty from 
the overgrown and all-grasping prerogative of an hereditary magistrate, supported 



1 1 lay icsLi alecs, lyicuniy may wen uc appi ci ici iucu, ui i ouiiic lavuiauic ci i iciyci luy, lu 

start up in the same quarter. But in a representative republic, where the executive 
magistracy is carefully limited; both in the extent and the duration of its power; and 
where the legislative power is exercised by an assembly, which is inspired, by a 
supposed influence over the people, with an intrepid confidence in its own 
strength; which is sufficiently numerous to feel all the passions which actuate a 
multitude, yet not so numerous as to be incapable of pursuing the objects of its 
passions, by means which reason prescribes; it is against the enterprising 
ambition of this department that the people ought to indulge all their jealousy and 
exhaust all their precautions. 

The legislative department derives a superiority in our governments from other 
circumstances. Its constitutional powers being at once more extensive, and less 
susceptible of precise limits, it can, with the greater facility, mask, under 
complicated and indirect measures, the encroachments which it makes on the co- 
ordinate departments. It is not unfrequently a question of real nicety in legislative 
bodies, whether the operation of a particular measure will, or will not, extend 
beyond the legislative sphere. On the other side, the executive power being 
restrained within a narrower compass, and being more simple in its nature, and 
the judiciary being described by landmarks still less uncertain, projects of 



111 auunuaiiuc iiuiii u ic icuuiucj di iu cuuiiivco ui cvciy oicuc mi li ic uiiiuii. dui ao a 

more concise, and at the same time equally satisfactory, evidence, I will refer to 
the example of two States, attested by two unexceptionable authorities. 

The first example is that of Virginia, a State which, as we have seen, has expressly 
declared in its constitution, that the three great departments ought not to be 
intermixed. The authority in support of it is Mr. Jefferson, who, besides his other 
advantages for remarking the operation of the government, was himself the chief 
magistrate of it. In order to convey fully the ideas with which his experience had 
impressed him on this subject, it will be necessary to quote a passage of some 
length from his very interesting Notes on the State of Virginia, p. 195. "All the 
powers of government, legislative, executive, and judiciary, result to the legislative 
body. The concentrating these in the same hands, is precisely the definition of 
despotic government. It will be no alleviation, that these powers will be exercised 
by a plurality of hands, and not by a single one. One hundred and seventy-three 
despots would surely be as oppressive as one. Let those who doubt it, turn their 
eyes on the republic of Venice. As little will it avail us, that they are chosen by 
ourselves. An ELECTIVE DESPOTISM was not the government we fought for; but 
one which should not only be founded on free principles, but in which the powers of 
government should be so divided and balanced among several bodies of 



which will render them obligatory on the other branches. They have accordingly, IN 
MANY instances, DECIDED RIGHTS which should have been left to JUDICIARY 
CONTROVERSY, and THE DIRECTION OF THE EXECUTIVE, DURING THE 
WHOLE TIME OF THEIR SESSION, IS BECOMING HABITUAL AND FAMILIAR." 

The other State which I shall take for an example is Pennsylvania; and the other 
authority, the Council of Censors, which assembled in the years 1783 and 1784. A 
part of the duty of this body, as marked out by the constitution, was "to inquire 
whether the constitution had been preserved inviolate in every part; and whether 
the legislative and executive branches of government had performed their duty as 
guardians of the people, or assumed to themselves, or exercised, other or greater 
powers than they are entitled to by the constitution." In the execution of this trust, 
the council were necessarily led to a comparison of both the legislative and 
executive proceedings, with the constitutional powers of these departments; and 
from the facts enumerated, and to the truth of most of which both sides in the 
council subscribed, it appears that the constitution had been flagrantly violated by 
the legislature in a variety of important instances. 

A great number of laws had been passed, violating, without any apparent 
necessity, the rule requiring that all bills of a public nature shall be previously 



I I IWvJV^ V VI IV-/ VUIUI I L\_/ UUU LI IV- UU VV^IUI UUI UUUIUI O I LAM I I IVJ Lyll I VI V^ I V^UUI I \_/ I LI IUOU I IV- U.U s-t , 

may consult the journals of the council, which are in print. Some of them, it will be 
found, may be imputable to peculiar circumstances connected with the war; but the 
greater part of them may be considered as the spontaneous shoots of an ill- 
constituted government. 

It appears, also, that the executive department had not been innocent of frequent 
breaches of the constitution. There are three observations, however, which ought 
to be made on this head: FIRST, a great proportion of the instances were either 
immediately produced by the necessities of the war, or recommended by 
Congress or the commander-in-chief; SECOND, in most of the other instances, 
they conformed either to the declared or the known sentiments of the legislative 
department; THIRD, the executive department of Pennsylvania is distinguished 
from that of the other States by the number of members composing it. In this 
respect, it has as much affinity to a legislative assembly as to an executive council. 
And being at once exempt from the restraint of an individual responsibility for the 
acts of the body, and deriving confidence from mutual example and joint influence, 
unauthorized measures would, of course, be more freely hazarded, than where the 
executive department is administered by a single hand, or by a few hands. 



FEDERALIST No. 49. Method of Guarding 

Against the Encroachments of Any One 

Department of Government by Appealing to the 

People Through a Convention. 

For the Independent Journal. Saturday, February 2, 1788. 

MADISON 

To the People of the State of New York: 

THE author of the "Notes on the State of Virginia," quoted in the last paper, has 
subjoined to that valuable work the draught of a constitution, which had been 
prepared in order to be laid before a convention, expected to be called in 1783, by 
the legislature, for the establishment of a constitution for that commonwealth. The 
plan, like every thing from the same pen, marks a turn of thinking, original, 



Dr\i_nv^nto wr~ 1 1 , a. uui ivci iuui i 01 ian uc ocuicu iui u ic |jui |juoc. 

As the people are the only legitimate fountain of power, and it is from them that the 
constitutional charter, under which the several branches of government hold their 
power, is derived, it seems strictly consonant to the republican theory, to recur to 
the same original authority, not only whenever it may be necessary to enlarge, 
diminish, or new-model the powers of the government, but also whenever anyone 
of the departments may commit encroachments on the chartered authorities of the 
others. The several departments being perfectly co-ordinate by the terms of their 
common commission, none of them, it is evident, can pretend to an exclusive or 
superior right of settling the boundaries between their respective powers; and how 
are the encroachments of the stronger to be prevented, or the wrongs of the 
weaker to be redressed, without an appeal to the people themselves, who, as the 
grantors of the commissions, can alone declare its true meaning, and enforce its 
observance? 

There is certainly great force in this reasoning, and it must be allowed to prove that 
a constitutional road to the decision of the people ought to be marked out and kept 
open, for certain great and extraordinary occasions. But there appear to be 
insuperable objections against the proposed recurrence to the people, as a 



that as every appeal to the people would carry an implication of some defect in the 
government, frequent appeals would, in a great measure, deprive the government 
of that veneration which time bestows on every thing, and without which perhaps 
the wisest and freest governments would not possess the requisite stability. If it be 
true that all governments rest on opinion, it is no less true that the strength of 
opinion in each individual, and its practical influence on his conduct, depend much 
on the number which he supposes to have entertained the same opinion. The 
reason of man, like man himself, is timid and cautious when left alone, and 
acquires firmness and confidence in proportion to the number with which it is 
associated. When the examples which fortify opinion are ANCIENT as well as 
NUMEROUS, they are known to have a double effect. In a nation of philosophers, 
this consideration ought to be disregarded. A reverence for the laws would be 
sufficiently inculcated by the voice of an enlightened reason. But a nation of 
philosophers is as little to be expected as the philosophical race of kings wished 
for by Plato. And in every other nation, the most rational government will not find it 
a superfluous advantage to have the prejudices of the community on its side. 

The danger of disturbing the public tranquillity by interesting too strongly the public 
passions, is a still more serious objection against a frequent reference of 



reformed, could mingle its leaven in the operation. The future situations in which 
we must expect to be usually placed, do not present any equivalent security 
against the danger which is apprehended. 

But the greatest objection of all is, that the decisions which would probably result 
from such appeals would not answer the purpose of maintaining the constitutional 
equilibrium of the government. We have seen that the tendency of republican 
governments is to an aggrandizement of the legislative at the expense of the other 
departments. The appeals to the people, therefore, would usually be made by the 
executive and judiciary departments. But whether made by one side or the other, 
would each side enjoy equal advantages on the trial? Let us view their different 
situations. The members of the executive and judiciary departments are few in 
number, and can be personally known to a small part only of the people. The latter, 
by the mode of their appointment, as well as by the nature and permanency of it, 
are too far removed from the people to share much in their prepossessions. The 
former are generally the objects of jealousy, and their administration is always 
liable to be discolored and rendered unpopular. The members of the legislative 
department, on the other hand, are numerous. They are distributed and dwell 
among the people at large. Their connections of blood, of friendship, and of 



ui iciiciuicio, ui i vvi iui 1 1 cvciy u in ly ucpci iuo n i ouui i uuuico. 1 1 ic uui ivci iuui i, n i 01 iui i, 

would be composed chiefly of men who had been, who actually were, or who 
expected to be, members of the department whose conduct was arraigned. They 
would consequently be parties to the very question to be decided by them. 

It might, however, sometimes happen, that appeals would be made under 
circumstances less adverse to the executive and judiciary departments. The 
usurpations of the legislature might be so flagrant and so sudden, as to admit of 
no specious coloring. A strong party among themselves might take side with the 
other branches. The executive power might be in the hands of a peculiar favorite of 
the people. In such a posture of things, the public decision might be less swayed 
by prepossessions in favor of the legislative party. But still it could never be 
expected to turn on the true merits of the question. It would inevitably be connected 
with the spirit of pre-existing parties, or of parties springing out of the question 
itself. It would be connected with persons of distinguished character and extensive 
influence in the community. It would be pronounced by the very men who had been 
agents in, or opponents of, the measures to which the decision would relate. The 
PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it 
is the reason, alone, of the public, that ought to control and regulate the 
government. The passions ought to be controlled and regulated by the 



FEDERALIST No. 50. Periodical Appeals to the 

People Considered 

From the New York Packet. Tuesday, February 5, 1788. 

MADISON 

To the People of the State of New York: 

IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the 
people, which are liable to the objections urged against them, PERIODICAL 
appeals are the proper and adequate means of PREVENTING AND 
CORRECTING INFRACTIONS OF THE CONSTITUTION. 



I \~* III V^ IV« I IV V^ V^ V^ I LI IV V^ LI IV« I V»r I I I LVl V I Wl V V^ I V-^. V>l I V»r *-/ ViWW I V^ I IVIW I V«» V I \~* V W V^ I LI IV« I I Ig LI II v»r 

advantage is inseparable from inconveniences which seem to counterbalance it. In 
the first place, a distant prospect of public censure would be a very feeble restraint 
on power from those excesses to which it might be urged by the force of present 
motives. Is it to be imagined that a legislative assembly, consisting of a hundred or 
two hundred members, eagerly bent on some favorite object, and breaking 
through the restraints of the Constitution in pursuit of it, would be arrested in their 
career, by considerations drawn from a censorial revision of their conduct at the 
future distance of ten, fifteen, or twenty years? In the next place, the abuses would 
often have completed their mischievous effects before the remedial provision 
would be applied. And in the last place, where this might not be the case, they 
would be of long standing, would have taken deep root, and would not easily be 
extirpated. 

The scheme of revising the constitution, in order to correct recent breaches of it, 
as well as for other purposes, has been actually tried in one of the States. One of 
the objects of the Council of Censors which met in Pennsylvania in 1783 and 
1784, was, as we have seen, to inquire, "whether the constitution had been 
violated, and whether the legislative and executive departments had encroached 
upon each other." This important and novel experiment in politics merits, in several 



within the period to be reviewed; and even patrons or opponents of the very 
measures to be thus brought to the test of the constitution. Two of the members 
had been vice-presidents of the State, and several other members of the 
executive council, within the seven preceding years. One of them had been 
speaker, and a number of others distinguished members, of the legislative 
assembly within the same period. 

Third. Every page of their proceedings witnesses the effect of all these 
circumstances on the temper of their deliberations. Throughout the continuance of 
the council, it was split into two fixed and violent parties. The fact is acknowledged 
and lamented by themselves. Had this not been the case, the face of their 
proceedings exhibits a proof equally satisfactory. In all questions, however 
unimportant in themselves, or unconnected with each other, the same names 
stand invariably contrasted on the opposite columns. Every unbiased observer 
may infer, without danger of mistake, and at the same time without meaning to 
reflect on either party, or any individuals of either party, that, unfortunately, 
PASSION, not REASON, must have presided over their decisions. When men 
exercise their reason coolly and freely on a variety of distinct questions, they 
inevitably fall into different opinions on some of them. When they are governed by 



This censorial body, therefore, proves at the same time, by its researches, the 
existence of the disease, and by its example, the inefficacyof the remedy. 

This conclusion cannot be invalidated by alleging that the State in which the 
experiment was made was at that crisis, and had been for a long time before, 
violently heated and distracted by the rage of party. Is it to be presumed, that at 
any future septennial epoch the same State will be free from parties? Is it to be 
presumed that any other State, at the same or any other given period, will be 
exempt from them? Such an event ought to be neither presumed nor desired; 
because an extinction of parties necessarily implies either a universal alarm for 
the public safety, or an absolute extinction of liberty. 

Were the precaution taken of excluding from the assemblies elected by the 
people, to revise the preceding administration of the government, all persons who 
should have been concerned with the government within the given period, the 
difficulties would not be obviated. The important task would probably devolve on 
men, who, with inferior capacities, would in other respects be little better qualified. 
Although they might not have been personally concerned in the administration, and 
therefore not immediately agents in the measures to be examined, they would 



uuvemmeru iviusi rumisn ine r roper uneuKS 

and Balances Between the Different 

Departments. 

For the Independent Journal. Wednesday, February 6, 1788. 

MADISON 

To the People of the State of New York: 

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the 
necessary partition of power among the several departments, as laid down in the 
Constitution? The only answer that can be given is, that as all these exterior 
provisions are found to be inadequate, the defect must be supplied, by so 
contriving the interior structure of the government as that its several constituent 
parts may, by their mutual relations, be the means of keeping each other in their 
proper places. Without presuming to undertake a full development of this important 



juuiuiaiy 1 1 layiouauico 01 iuuiu uc uiavvii iiuiii u ic ocuiic luuiucuii ui auu lumy, u ic 

people, through channels having no communication whatever with one another. 
Perhaps such a plan of constructing the several departments would be less difficult 
in practice than it may in contemplation appear. Some difficulties, however, and 
some additional expense would attend the execution of it. Some deviations, 
therefore, from the principle must be admitted. In the constitution of the judiciary 
department in particular, it might be inexpedient to insist rigorously on the 
principle: first, because peculiar qualifications being essential in the members, the 
primary consideration ought to be to select that mode of choice which best 
secures these qualifications; secondly, because the permanent tenure by which 
the appointments are held in that department, must soon destroy all sense of 
dependence on the authority conferring them. 

It is equally evident, that the members of each department should be as little 
dependent as possible on those of the others, for the emoluments annexed to their 
offices. Were the executive magistrate, or the judges, not independent of the 
legislature in this particular, their independence in every other would be merely 
nominal. 

But the great security against a gradual concentration of the several powers in the 



enable the government to control the governed; and in the next place oblige it to 
control itself. A dependence on the people is, no doubt, the primary control on the 
government; but experience has taught mankind the necessity of auxiliary 
precautions. 

This policy of supplying, by opposite and rival interests, the defect of better 
motives, might be traced through the whole system of human affairs, private as 
well as public. We see it particularly displayed in all the subordinate distributions 
of power, where the constant aim is to divide and arrange the several offices in 
such a manner as that each may be a check on the otherA — that the private 
interest of every individual may be a sentinel over the public rights. These 
inventions of prudence cannot be less requisite in the distribution of the supreme 
powers of the State. 

But it is not possible to give to each department an equal power of self-defense. In 
republican government, the legislative authority necessarily predominates. The 
remedy for this inconveniency is to divide the legislature into different branches; 
and to render them, by different modes of election and different principles of 
action, as little connected with each other as the nature of their common functions 
and their common dependence on the society will admit. It may even be necessary 



from the rights of its own department? 

If the principles on which these observations are founded be just, as I persuade 
myself they are, and they be applied as a criterion to the several State 
constitutions, and to the federal Constitution it will be found that if the latter does 
not perfectly correspond with them, the former are infinitely less able to bear such 
a test. 

There are, moreover, two considerations particularly applicable to the federal 
system of America, which place that system in a very interesting point of view. 

First. In a single republic, all the power surrendered by the people is submitted to 
the administration of a single government; and the usurpations are guarded 
against by a division of the government into distinct and separate departments. In 
the compound republic of America, the power surrendered by the people is first 
divided between two distinct governments, and then the portion allotted to each 
subdivided among distinct and separate departments. Hence a double security 
arises to the rights of the people. The different governments will control each other, 
at the same time that each will be controlled by itself. 



well espouse the unjust views of the major, as the rightful interests of the minor 
party, and may possibly be turned against both parties. The second method will be 
exemplified in the federal republic of the United States. Whilst all authority in it will 
be derived from and dependent on the society, the society itself will be broken into 
so many parts, interests, and classes of citizens, that the rights of individuals, or of 
the minority, will be in little danger from interested combinations of the majority. In 
a free government the security for civil rights must be the same as that for religious 
rights. It consists in the one case in the multiplicity of interests, and in the other in 
the multiplicity of sects. The degree of security in both cases will depend on the 
number of interests and sects; and this maybe presumed to depend on the extent 
of country and number of people comprehended under the same government. This 
view of the subject must particularly recommend a proper federal system to all the 
sincere and considerate friends of republican government, since it shows that in 
exact proportion as the territory of the Union may be formed into more 
circumscribed Confederacies, or States oppressive combinations of a majority 
will be facilitated: the best security, under the republican forms, for the rights of 
every class of citizens, will be diminished: and consequently the stability and 
independence of some member of the government, the only other security, must 
be proportionately increased. Justice is the end of government. It is the end of civil 



government within such narrow limits would be displayed by such reiterated 
oppressions of factious majorities that some power altogether independent of the 
people would soon be called for by the voice of the very factions whose misrule 
had proved the necessity of it. In the extended republic of the United States, and 
among the great variety of interests, parties, and sects which it embraces, a 
coalition of a majority of the whole society could seldom take place on any other 
principles than those of justice and the general good; whilst there being thus less 
danger to a minor from the will of a major party, there must be less pretext, also, to 
provide for the security of the former, by introducing into the government a will not 
dependent on the latter, or, in other words, a will independent of the society itself. It 
is no less certain than it is important, notwithstanding the contrary opinions which 
have been entertained, that the larger the society, provided it lie within a practical 
sphere, the more duly capable it will be of self-government. And happily for the 
REPUBLICAN CAUSE, the practicable sphere may be carried to a very great 
extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE. 

PUBLIUS 



To the People of the State of New York: 

FROM the more general inquiries pursued in the four last papers, I pass onto a 
more particular examination of the several parts of the government. I shall begin 
with the House of Representatives. 

The first view to be taken of this part of the government relates to the qualifications 
of the electors and the elected. Those of the former are to be the same with those 
of the electors of the most numerous branch of the State legislatures. The 
definition of the right of suffrage is very justly regarded as a fundamental article of 
republican government. It was incumbent on the convention, therefore, to define 
and establish this right in the Constitution. To have left it open for the occasional 
regulation of the Congress, would have been improper for the reason just 
mentioned. To have submitted it to the legislative discretion of the States, would 
have been improper for the same reason; and for the additional reason that it 
would have rendered too dependent on the State governments that branch of the 
federal government which ought to be dependent on the people alone. To have 
reduced the different qualifications in the different States to one uniform rule, 



oicuc uui Diiiuuui 10, cu iu ucniy ai u ic sai i ic uiiic iiiuic ouol.c|juuic ui ui iiiui i i my, 

have been very properly considered and regulated by the convention. A 
representative of the United States must be of the age of twenty-five years; must 
have been seven years a citizen of the United States; must, at the time of his 
election, be an inhabitant of the State he is to represent; and, during the time of his 
service, must be in no office under the United States. Under these reasonable 
limitations, the door of this part of the federal government is open to merit of every 
description, whether native or adoptive, whether young or old, and without regard 
to poverty or wealth, or to any particular profession of religious faith. 

The term for which the representatives are to be elected falls under a second view 
which may be taken of this branch. In order to decide on the propriety of this 
article, two questions must be considered: first, whether biennial elections will, in 
this case, be safe; secondly, whether they be necessary or useful. 

First. As it is essential to liberty that the government in general should have a 
common interest with the people, so it is particularly essential that the branch of it 
under consideration should have an immediate dependence on, and an intimate 
sympathy with, the people. Frequent elections are unquestionably the only policy 
by which this dependence and sympathy can be effectually secured. But what 



io li ic nuuac ui v^uiiiinuiio 11 1 vjicoi lji iiciii i. i i ic i noiuiy ui u no uio.iil.iiui u ic i_i iljiioi i 

Constitution, anterior to the date of Magna Charta, is too obscure to yield 
instruction. The very existence of it has been made a question among political 
antiquaries. The earliest records of subsequent date prove that parliaments were 
to SIT only every year; not that they were to be ELECTED every year. And even 
these annual sessions were left so much at the discretion of the monarch, that, 
under various pretexts, very long and dangerous intermissions were often 
contrived by royal ambition. To remedy this grievance, it was provided by a statute 
in the reign of Charles II, that the intermissions should not be protracted beyond a 
period of three years. On the accession of William III, when a revolution took place 
in the government, the subject was still more seriously resumed, and it was 
declared to be among the fundamental rights of the people that parliaments ought 
to be held FREQUENTLY. By another statute, which passed a few years later in 
the same reign, the term "frequently," which had alluded to the triennial period 
settled in the time of Charles II, is reduced to a precise meaning, it being expressly 
enacted that a new parliament shall be called within three years after the 
termination of the former. The last change, from three to seven years, is well known 
to have been introduced pretty early in the present century, under on alarm for the 
Hanoverian succession. From these facts it appears that the greatest frequency of 



UIUVVII, CU IU VVCIC OCIUUIII ICkJCdlCU, CAUCkJl Ul I LI IC O.UUCOOI Ul I Ul a I ICVV JJIIIIUC, Ul 

some other contingent event. The parliament which commenced with George II. 
was continued throughout his whole reign, a period of about thirty-five years. The 
only dependence of the representatives on the people consisted in the right of the 
latter to supply occasional vacancies by the election of new members, and in the 
chance of some event which might produce a general new election. The ability 
also of the Irish parliament to maintain the rights of their constituents, so far as the 
disposition might exist, was extremely shackled by the control of the crown over 
the subjects of their deliberation. Of late these shackles, if I mistake not, have 
been broken; and octennial parliaments have besides been established. What 
effect may be produced by this partial reform, must be left to further experience. 
The example of Ireland, from this view of it, can throw but little light on the subject. 
As far as we can draw any conclusion from it, it must be that if the people of that 
country have been able under all these disadvantages to retain any liberty 
whatever, the advantage of biennial elections would secure to them every degree 
of liberty, which might depend on a due connection between their representatives 
and themselves. 

Let us bring our inquiries nearer home. The example of these States, when British 
colonies, claims particular attention, at the same time that it is so well known as to 



resisting the parliamentary usurpations of Great Britain; it was the first also in 
espousing, by public act, the resolution of independence. In Virginia, nevertheless, 
if I have not been misinformed, elections under the former government were 
septennial. This particular example is brought into view, not as a proof of any 
peculiar merit, for the priority in those instances was probably accidental; and still 
less of any advantage in SEPTENNIAL elections, for when compared with a 
greater frequency they are inadmissible; but merely as a proof, and I conceive it to 
be a very substantial proof, that the liberties of the people can be in no danger 
from BIENNIAL elections. 

The conclusion resulting from these examples will be not a little strengthened by 
recollecting three circumstances. The first is, that the federal legislature will 
possess a part only of that supreme legislative authority which is vested 
completely in the British Parliament; and which, with a few exceptions, was 
exercised by the colonial assemblies and the Irish legislature. It is a received and 
well-founded maxim, that where no other circumstances affect the case, the 
greater the power is, the shorter ought to be its duration; and, conversely, the 
smaller the power, the more safely may its duration be protracted. In the second 
place, it has, on another occasion, been shown that the federal legislature will not 



PUBLIUS 



FEDERALIST No. 53. The Same Subject 
Continued (The House of Representatives) 

For the Independent Journal. Saturday, February 9, 1788. 

MADISON 

To the People of the State of New York: 

I SHALL here, perhaps, be reminded of a current observation, "that where annual 
elections end, tyranny begins." If it be true, as has often been remarked, that 



or monthly, as well as annual; and if circumstances may require a deviation from 
the rule on one side, why not also on the other side? Turning our attention to the 
periods established among ourselves, for the election of the most numerous 
branches of the State legislatures, we find them by no means coinciding anymore 
in this instance, than in the elections of other civil magistrates. In Connecticut and 
Rhode Island, the periods are half-yearly. In the other States, South Carolina 
excepted, they are annual. In South Carolina they are biennialA — as is proposed 
in the federal government. Here is a difference, as four to one, between the 
longest and shortest periods; and yet it would be not easy to show, that 
Connecticut or Rhode Island is better governed, or enjoys a greater share of 
rational liberty, than South Carolina; or that either the one or the other of these 
States is distinguished in these respects, and by these causes, from the States 
whose elections are different from both. 

In searching for the grounds of this doctrine, I can discover but one, and that is 
wholly inapplicable to our case. The important distinction so well understood in 
America, between a Constitution established by the people and unalterable by the 
government, and a law established by the government and alterable by the 
government, seems to have been little understood and less observed in any other 



which they were elected by the people. An attention to these dangerous practices 
has produced a very natural alarm in the votaries of free government, of which 
frequency of elections is the corner-stone; and has led them to seek for some 
security to liberty, against the danger to which it is exposed. Where no 
Constitution, paramount to the government, either existed or could be obtained, no 
constitutional security, similar to that established in the United States, was to be 
attempted. Some other security, therefore, was to be sought for; and what better 
security would the case admit, than that of selecting and appealing to some simple 
and familiar portion of time, as a standard for measuring the danger of 
innovations, for fixing the national sentiment, and for uniting the patriotic exertions? 
The most simple and familiar portion of time, applicable to the subject was that of 
a year; and hence the doctrine has been inculcated by a laudable zeal, to erect 
some barrier against the gradual innovations of an unlimited government, that the 
advance towards tyranny was to be calculated by the distance of departure from 
the fixed point of annual elections. But what necessity can there be of applying this 
expedient to a government limited, as the federal government will be, by the 
authority of a paramount Constitution? Or who will pretend that the liberties of the 
people of America will not be more secure under biennial elections, unalterably 
fixed by such a Constitution, than those of any other nation would be, where 



the station which requires the use of it. The period of service, ought, therefore, in 
all such cases, to bear some proportion to the extent of practical knowledge 
requisite to the due performance of the service. The period of legislative service 
established in most of the States for the more numerous branch is, as we have 
seen, one year. The question then may be put into this simple form: does the 
period of two years bear no greater proportion to the knowledge requisite for 
federal legislation than one year does to the knowledge requisite for State 
legislation? The very statement of the question, in this form, suggests the answer 
that ought to be given to it. 

In a single State, the requisite knowledge relates to the existing laws which are 
uniform throughout the State, and with which all the citizens are more or less 
conversant; and to the general affairs of the State, which lie within a small 
compass, are not very diversified, and occupy much of the attention and 
conversation of every class of people. The great theatre of the United States 
presents a very different scene. The laws are so far from being uniform, that they 
vary in every State; whilst the public affairs of the Union are spread throughout a 
very extensive region, and are extremely diversified by the local affairs connected 
with them, and can with difficulty be correctly learnt in any other place than in the 



internal circumstances by which the States are distinguished from each other? 
These are the principal objects of federal legislation, and suggest most forcibly the 
extensive information which the representatives ought to acquire. The other interior 
objects will require a proportional degree of information with regard to them. 

It is true that all these difficulties will, by degrees, be very much diminished. The 
most laborious task will be the proper inauguration of the government and the 
primeval formation of a federal code. Improvements on the first draughts will every 
year become both easier and fewer. Past transactions of the government will be a 
ready and accurate source of information to new members. The affairs of the 
Union will become more and more objects of curiosity and conversation among 
the citizens at large. And the increased intercourse among those of different 
States will contribute not a little to diffuse a mutual knowledge of their affairs, as 
this again will contribute to a general assimilation of their manners and laws. But 
with all these abatements, the business of federal legislation must continue so far 
to exceed, both in novelty and difficulty, the legislative business of a single State, 
as to justify the longer period of service assigned to those who are to transact it. 

A branch of knowledge which belongs to the acquirements of a federal 
representative, and which has not been mentioned is that of foreign affairs. In 



information; and all of it will be acquired to best effect by a practical attention to the 
subject during the period of actual service in the legislature. 

There are other considerations, of less importance, perhaps, but which are not 
unworthy of notice. The distance which many of the representatives will be obliged 
to travel, and the arrangements rendered necessary by that circumstance, might 
be much more serious objections with fit men to this service, if limited to a single 
year, than if extended to two years. No argument can be drawn on this subject, 
from the case of the delegates to the existing Congress. They are elected 
annually, it is true; but their re-election is considered by the legislative assemblies 
almost as a matter of course. The election of the representatives by the people 
would not be governed by the same principle. 

A few of the members, as happens in all such assemblies, will possess superior 
talents; will, by frequent reelections, become members of long standing; will be 
thoroughly masters of the public business, and perhaps not unwilling to avail 
themselves of those advantages. The greater the proportion of new members, and 
the less the information of the bulk of the members the more apt will they be to fall 
into the snares that may be laid for them. This remark is no less applicable to the 
relation which will subsist between the House of Representatives and the Senate. 



ui no 1 1 ici i iucio, ai iu vviiaicvci n i ipi uvci i ici ius may uc auyycoicu uy cajjciici iuc, iui 

simplifying and accelerating the process in disputed cases, so great a portion of a 
year would unavoidably elapse, before an illegitimate member could be 
dispossessed of his seat, that the prospect of such an event would be little check 
to unfair and illicit means of obtaining a seat. 

All these considerations taken together warrant us in affirming, that biennial 
elections will be as useful to the affairs of the public as we have seen that they will 
be safe to the liberty of the people. 

PUBLIUS 



FEDERALIST No. 54. The Apportionment of 
Members Among the States 



standard for regulating the proportion of those who are to represent the people of 
each State. The establishment of the same rule for the appointment of taxes, will 
probably be as little contested; though the rule itself in this case, is by no means 
founded on the same principle. In the former case, the rule is understood to refer to 
the personal rights of the people, with which it has a natural and universal 
connection. In the latter, it has reference to the proportion of wealth, of which it is in 
no case a precise measure, and in ordinary cases a very unfit one. But 
notwithstanding the imperfection of the rule as applied to the relative wealth and 
contributions of the States, it is evidently the least objectionable among the 
practicable rules, and had too recently obtained the general sanction of America, 
not to have found a ready preference with the convention. 

All this is admitted, it will perhaps be said; but does it follow, from an admission of 
numbers for the measure of representation, or of slaves combined with free 
citizens as a ratio of taxation, that slaves ought to be included in the numerical rule 
of representation? Slaves are considered as property, not as persons. They ought 
therefore to be comprehended in estimates of taxation which are founded on 
property, and to be excluded from representation which is regulated by a census 
of persons. This is the objection, as I understand it, stated in its full force. I shall be 



ui laouocu hi i mo uuuy, uy u ic ua|ji iuiuuo win ui ai iuu iciaa — n ic oiavc 1 1 lay a|j|jcai lu 

be degraded from the human rank, and classed with those irrational animals which 
fall under the legal denomination of property. In being protected, on the other hand, 
in his life and in his limbs, against the violence of all others, even the master of his 
labor and his liberty; and in being punishable himself for all violence committed 
against othersA — the slave is no less evidently regarded by the law as a member 
of the society, not as a part of the irrational creation; as a moral person, not as a 
mere article of property. The federal Constitution, therefore, decides with great 
propriety on the case of our slaves, when it views them in the mixed character of 
persons and of property. This is in fact their true character. It is the character 
bestowed on them by the laws under which they live; and it will not be denied, that 
these are the proper criterion; because it is only under the pretext that the laws 
have transformed the negroes into subjects of property, that a place is disputed 
them in the computation of numbers; and it is admitted, that if the laws were to 
restore the rights which have been taken away, the negroes could no longer be 
refused an equal share of representation with the other inhabitants. 

"This question may be placed in another light. It is agreed on all sides, that 
numbers are the best scale of wealth and taxation, as they are the only proper 
scale of representation. Would the convention have been impartial or consistent, if 



"It may be replied, perhaps, that slaves are not included in the estimate of 
representatives in any of the States possessing them. They neither vote 
themselves nor increase the votes of their masters. Upon what principle, then, 
ought they to be taken into the federal estimate of representation? In rejecting 
them altogether, the Constitution would, in this respect, have followed the very laws 
which have been appealed to as the proper guide. 

"This objection is repelled by a single observation. It is a fundamental principle of 
the proposed Constitution, that as the aggregate number of representatives 
allotted to the several States is to be determined by a federal rule, founded on the 
aggregate number of inhabitants, so the right of choosing this allotted number in 
each State is to be exercised by such part of the inhabitants as the State itself 
may designate. The qualifications on which the right of suffrage depend are not, 
perhaps, the same in any two States. In some of the States the difference is very 
material. In every State, a certain proportion of inhabitants are deprived of this 
right by the constitution of the State, who will be included in the census by which 
the federal Constitution apportions the representatives. In this point of view the 
Southern States might retort the complaint, by insisting that the principle laid down 
by the convention required that no regard should be had to the policy of particular 



aailci an, 1 1 lay i iul ai iuu ici y iuui iu uc iar\ci i ui i vvi iiui i u no ai uuic ui u ic v^ui duiuuui i 

will admit of a still more ready defense? We have hitherto proceeded on the idea 
that representation related to persons only, and not at all to property. But is it a just 
idea? Government is instituted no less for protection of the property, than of the 
persons, of individuals. The one as well as the other, therefore, may be considered 
as represented by those who are charged with the government. Upon this principle 
it is, that in several of the States, and particularly in the State of New York, one 
branch of the government is intended more especially to be the guardian of 
property, and is accordingly elected by that part of the society which is most 
interested in this object of government. In the federal Constitution, this policy does 
not prevail. The rights of property are committed into the same hands with the 
personal rights. Some attention ought, therefore, to be paid to property in the 
choice of those hands. 

"For another reason, the votes allowed in the federal legislature to the people of 
each State, ought to bear some proportion to the comparative wealth of the 
States. States have not, like individuals, an influence over each other, arising from 
superior advantages of fortune. If the law allows an opulent citizen but a single vote 
in the choice of his representative, the respect and consequence which he derives 
from his fortunate situation very frequently guide the votes of others to the objects 



efficacy of the federal resolutions depends on the subsequent and voluntary 
resolutions of the states composing the union. Hence the states, though 
possessing an equal vote in the public councils, have an unequal influence, 
corresponding with the unequal importance of these subsequent and voluntary 
resolutions. Under the proposed Constitution, the federal acts will take effect 
without the necessary intervention of the individual States. They will depend merely 
on the majority of votes in the federal legislature, and consequently each vote, 
whether proceeding from a larger or smaller State, or a State more or less wealthy 
or powerful, will have an equal weight and efficacy: in the same manner as the 
votes individually given in a State legislature, by the representatives of unequal 
counties or other districts, have each a precise equality of value and effect; or if 
there be any difference in the case, it proceeds from the difference in the personal 
character of the individual representative, rather than from any regard to the extent 
of the district from which he comes." 

Such is the reasoning which an advocate for the Southern interests might employ 
on this subject; and although it may appear to be a little strained in some points, 
yet, on the whole, I must confess that it fully reconciles me to the scale of 
representation which the convention have established. 



PUBLIUS 



FEDERALIST No. 55. The Total Number of the 

House of Representatives 

For the Independent Journal. Wednesday, February 13, 1788. 

MADISON 

To the People of the State of New York: 

THE number of which the House of Representatives is to consist, forms another 
and a very interesting point of view, under which this branch of the federal 



prevent a correspondent increase of the representatives. 

In general it may be remarked on this subject, that no political problem is less 
susceptible of a precise solution than that which relates to the number most 
convenient for a representative legislature; nor is there any point on which the 
policy of the several States is more at variance, whether we compare their 
legislative assemblies directly with each other, or consider the proportions which 
they respectively bear to the number of their constituents. Passing over the 
difference between the smallest and largest States, as Delaware, whose most 
numerous branch consists of twenty-one representatives, and Massachusetts, 
where it amounts to between three and four hundred, a very considerable 
difference is observable among States nearly equal in population. The number of 
representatives in Pennsylvania is not more than one fifth of that in the State last 
mentioned. New York, whose population is to that of South Carolina as six to five, 
has little more than one third of the number of representatives. As great a disparity 
prevails between the States of Georgia and Delaware or Rhode Island. In 
Pennsylvania, the representatives do not bear a greater proportion to their 
constituents than of one for every four or five thousand. In Rhode Island, they bear 
a proportion of at least one for every thousand. And according to the constitution of 



oiAiy ui acvci ny 1 1 ici i 1 1 lay uc iiiuic |jiupcny uuoicu vviu i a yivci i ucyicc ui |juvvci 

than six or seven. But it does not follow that six or seven hundred would be 
proportionably a better depositary. And if we carry on the supposition to six or 
seven thousand, the whole reasoning ought to be reversed. The truth is, that in all 
cases a certain number at least seems to be necessary to secure the benefits of 
free consultation and discussion, and to guard against too easy a combination for 
improper purposes; as, on the other hand, the number ought at most to be kept 
within a certain limit, in order to avoid the confusion and intemperance of a 
multitude. In all very numerous assemblies, of whatever character composed, 
passion never fails to wrest the sceptre from reason. Had every Athenian citizen 
been a Socrates, every Athenian assembly would still have been a mob. 

It is necessary also to recollect here the observations which were applied to the 
case of biennial elections. For the same reason that the limited powers of the 
Congress, and the control of the State legislatures, justify less frequent elections 
than the public safely might otherwise require, the members of the Congress need 
be less numerous than if they possessed the whole power of legislation, and were 
under no other than the ordinary restraints of other legislative bodies. 

With these general ideas in our mind, let us weigh the objections which have been 



t^Lii i iaui ly u ic i icyiuco n i li ic piupui uui i ui mice 1 1 1 u 10 , u uai i ouaiuciy uc uuuuicu 

that the population of the United States will by that time, if it does not already, 
amount to three millions. At the expiration of twenty-five years, according to the 
computed rate of increase, the number of representatives will amount to two 
hundred, and of fifty years, to four hundred. This is a number which, I presume, will 
put an end to all fears arising from the smallness of the body. I take for granted 
here what I shall, in answering the fourth objection, hereafter show, that the number 
of representatives will be augmented from time to time in the manner provided by 
the Constitution. On a contrary supposition, I should admit the objection to have 
very great weight indeed. 

The true question to be decided then is, whether the smallness of the number, as a 
temporary regulation, be dangerous to the public liberty? Whether sixty-five 
members for a few years, and a hundred or two hundred for a few more, be a safe 
depositary for a limited and well-guarded power of legislating for the United 
States? I must own that I could not give a negative answer to this question, without 
first obliterating every impression which I have received with regard to the present 
genius of the people of America, the spirit which actuates the State legislatures, 
and the principles which are incorporated with the political character of every class 
of citizens I am unable to conceive that the people of America, in their present 



population of our country may produce, requires a prophetic spirit to declare, 
which makes no part of my pretensions. But judging from the circumstances now 
before us, and from the probable state of them within a moderate period of time, I 
must pronounce that the liberties of America cannot be unsafe in the number of 
hands proposed by the federal Constitution. 

From what quarter can the danger proceed? Are we afraid of foreign gold? If 
foreign gold could so easily corrupt our federal rulers and enable them to ensnare 
and betray their constituents, how has it happened that we are at this time a free 
and independent nation? The Congress which conducted us through the 
Revolution was a less numerous body than their successors will be; they were not 
chosen by, nor responsible to, their fellowcitizens at large; though appointed from 
year to year, and recallable at pleasure, they were generally continued for three 
years, and prior to the ratification of the federal articles, for a still longer term. They 
held their consultations always under the veil of secrecy; they had the sole 
transaction of our affairs with foreign nations; through the whole course of the war 
they had the fate of their country more in their hands than it is to be hoped will ever 
be the case with our future representatives; and from the greatness of the prize at 
stake, and the eagerness of the party which lost it, it may well be supposed that 



i ici ui iciiyc r oui i icui i ica vvc a\ c luiu u icu u iio iui iu ui uuii upuui i 10 iu uc cm iciuoicu 

by the President in subduing the virtue of the Senate. Now, the fidelity of the other 
House is to be the victim. The improbability of such a mercenary and perfidious 
combination of the several members of government, standing on as different 
foundations as republican principles will well admit, and at the same time 
accountable to the society over which they are placed, ought alone to quiet this 
apprehension. But, fortunately, the Constitution has provided a still further 
safeguard. The members of the Congress are rendered ineligible to any civil 
offices that may be created, or of which the emoluments may be increased, during 
the term of their election. No offices therefore can be dealt out to the existing 
members but such as may become vacant by ordinary casualties: and to suppose 
that these would be sufficient to purchase the guardians of the people, selected by 
the people themselves, is to renounce every rule by which events ought to be 
calculated, and to substitute an indiscriminate and unbounded jealousy, with which 
all reasoning must be vain. The sincere friends of liberty, who give themselves up 
to the extravagancies of this passion, are not aware of the injury they do their own 
cause. As there is a degree of depravity in mankind which requires a certain 
degree of circumspection and distrust, so there are other qualities in human nature 
which justify a certain portion of esteem and confidence. Republican government 



FEDERALIST No. 56. The Same Subject 
Continued (The Total Number of the House of 

Representatives) 

For the Independent Journal. Saturday, February 16, 1788. 

MADISON 

To the People of the State of New York: 

THE SECOND charge against the House of Representatives is, that it will be too 
small to possess a due knowledge of the interests of its constituents. 

As this objection evidently proceeds from a comparison of the proposed number 
of representatives with the great extent of the United States, the number of their 



uclci 1 1 111 111 iy li ic caici 11 ui ii iiui 1 1 icuiui i icLjuncu 111 li ic cAciuoc ui a jjaniuuiai 

authority, recourse then must be had to the objects within the purview of that 
authority. 

What are to be the objects of federal legislation? Those which are of most 
importance, and which seem most to require local knowledge, are commerce, 
taxation, and the militia. 

A proper regulation of commerce requires much information, as has been 
elsewhere remarked; but as far as this information relates to the laws and local 
situation of each individual State, a very few representatives would be very 
sufficient vehicles of it to the federal councils. 

Taxation will consist, in a great measure, of duties which will be involved in the 
regulation of commerce. So far the preceding remark is applicable to this object. 
As far as it may consist of internal collections, a more diffusive knowledge of the 
circumstances of the State may be necessary. But will not this also be possessed 
in sufficient degree by a very few intelligent men, diffusively elected within the 
State? Divide the largest State into ten or twelve districts, and it will be found that 
there will be no peculiar local interests in either, which will not be within the 



by the assistance of the State codes, we need only suppose for a moment that this 
or any other State were divided into a number of parts, each having and exercising 
within itself a power of local legislation. Is it not evident that a degree of local 
information and preparatory labor would be found in the several volumes of their 
proceedings, which would very much shorten the labors of the general legislature, 
and render a much smaller number of members sufficient for it? The federal 
councils will derive great advantage from another circumstance. The 
representatives of each State will not only bring with them a considerable 
knowledge of its laws, and a local knowledge of their respective districts, but will 
probably in all cases have been members, and may even at the very time be 
members, of the State legislature, where all the local information and interests of 
the State are assembled, and from whence they may easily be conveyed by a very 
few hands into the legislature of the United States. 

(The observations made on the subject of taxation apply with greater force to the 
case of the militia. For however different the rules of discipline maybe in different 
States, they are the same throughout each particular State; and depend on 
circumstances which can differ but little in different parts of the same State.)(El) 

(With regard to the regulation of the militia, there are scarcely any circumstances 



io iciiucicu ncucooaiy a\ iu uiiiiouii, iiul uy a uiiicicii^c ui lavvo cu iu iuucu 

circumstances within a single State, but of those among different States. Taking 
each State by itself, its laws are the same, and its interests but little diversified. A 
few men, therefore, will possess all the knowledge requisite for a proper 
representation of them. Were the interests and affairs of each individual State 
perfectly simple and uniform, a knowledge of them in one part would involve a 
knowledge of them in every other, and the whole State might be competently 
represented by a single member taken from any part of it. On a comparison of the 
different States together, we find a great dissimilarity in their laws, and in many 
other circumstances connected with the objects of federal legislation, with all of 
which the federal representatives ought to have some acquaintance. Whilst a few 
representatives, therefore, from each State, may bring with them a due knowledge 
of their own State, every representative will have much information to acquire 
concerning all the other States. The changes of time, as was formerly remarked, 
on the comparative situation of the different States, will have an assimilating effect. 
The effect of time on the internal affairs of the States, taken singly, will be just the 
contrary. At present some of the States are little more than a society of 
husbandmen. Few of them have made much progress in those branches of 
industry which give a variety and complexity to the affairs of a nation. These, 



ic|jicoci nauvco ui u icic ciyin iiiiinuiio 111 u ic nuuac ui wui 1 11 1 iui 10 cuiiuuiu lu iivc 

hundred and fifty-eight. Of this number, one ninth are elected by three hundred and 
sixty-four persons, and one half, by five thousand seven hundred and twenty-three 
persons. (1) It cannot be supposed that the half thus elected, and who do not even 
reside among the people at large, can add any thing either to the security of the 
people against the government, or to the knowledge of their circumstances and 
interests in the legislative councils. On the contrary, it is notorious, that they are 
more frequently the representatives and instruments of the executive magistrate, 
than the guardians and advocates of the popular rights. They might therefore, with 
great propriety, be considered as something more than a mere deduction from the 
real representatives of the nation. We will, however, consider them in this light 
alone, and will not extend the deduction to a considerable number of others, who 
do not reside among their constitutents, are very faintly connected with them, and 
have very little particular knowledge of their affairs. With all these concessions, two 
hundred and seventy-nine persons only will be the depository of the safety, 
interest, and happiness of eight millions that is to say, there will be one 
representative only to maintain the rights and explain the situation of TWENTY- 
EIGHT THOUSAND SIX HUNDRED AND SEVENTY constitutents, in an 
assembly exposed to the whole force of executive influence, and extending its 



PUBLIUS 

1. Burgh's "Political Disquisitions." 

El. Two versions of this paragraph appear in different editions. 



FEDERALIST No. 57. The Alleged Tendency of 

the New Plan to Elevate the Few at the Expense 

of the Many Considered in Connection with 

Representation. 

From the New York Packet. Tuesday, February 19, 1788. 



(jieLeiiueu uiiyciiuiy, uit: |jiiiiui|jit: ui u £>uiKt:£> cil liic veiy iuui ui it:(juuiiuciii 

government. 

The aim of every political constitution is, or ought to be, first to obtain for rulers 
men who possess most wisdom to discern, and most virtue to pursue, the 
common good of the society; and in the next place, to take the most effectual 
precautions for keeping them virtuous whilst they continue to hold their public trust. 
The elective mode of obtaining rulers is the characteristic policy of republican 
government. The means relied on in this form of government for preventing their 
degeneracy are numerous and various. The most effectual one, is such a limitation 
of the term of appointments as will maintain a proper responsibility to the people. 

Let me now ask what circumstance there is in the constitution of the House of 
Representatives that violates the principles of republican government, or favors 
the elevation of the few on the ruins of the many? Let me ask whether every 
circumstance is not, on the contrary, strictly conformable to these principles, and 
scrupulously impartial to the rights and pretensions of every class and description 
of citizens? 

Who are to be the electors of the federal representatives? Not the rich, more than 



citizens may confer the representative trust, we shall find it involving every security 
which can be devised or desired for their fidelity to their constituents. 

In the first place, as they will have been distinguished by the preference of their 
fellow-citizens, we are to presume that in general they will be somewhat 
distinguished also by those qualities which entitle them to it, and which promise a 
sincere and scrupulous regard to the nature of their engagements. 

In the second place, they will enter into the public service under circumstances 
which cannot fail to produce a temporary affection at least to their constituents. 
There is in every breast a sensibility to marks of honor, of favor, of esteem, and of 
confidence, which, apart from all considerations of interest, is some pledge for 
grateful and benevolent returns. Ingratitude is a common topic of declamation 
against human nature; and it must be confessed that instances of it are but too 
frequent and flagrant, both in public and in private life. But the universal and 
extreme indignation which it inspires is itself a proof of the energy and prevalence 
of the contrary sentiment. 

In the third place, those ties which bind the representative to his constituents are 
strengthened by motives of a more selfish nature. His pride and vanity attach him 



u ic inuuc ui men cicvauun ucu i uc cnaucu uy u ic caciu^c ui ljuvvci , u icy win uc 

compelled to anticipate the moment when their power is to cease, when their 
exercise of it is to be reviewed, and when they must descend to the level from 
which they were raised; there forever to remain unless a faithful discharge of their 
trust shall have established their title to a renewal of it. 

I will add, as a fifth circumstance in the situation of the House of Representatives, 
restraining them from oppressive measures, that they can make no law which will 
not have its full operation on themselves and their friends, as well as on the great 
mass of the society. This has always been deemed one of the strongest bonds by 
which human policy can connect the rulers and the people together. It creates 
between them that communion of interests and sympathy of sentiments, of which 
few governments have furnished examples; but without which every government 
degenerates into tyranny. If it be asked, what is to restrain the House of 
Representatives from making legal discriminations in favor of themselves and a 
particular class of the society? I answer: the genius of the whole system; the nature 
of just and constitutional laws; and above all, the vigilant and manly spirit which 
actuates the people of AmericaA — a spirit which nourishes freedom, and in return 
is nourished by it. 



u icy i iul u ic iuci muai 1 1 icai 10 ui i vvi iiui i cvciy oiaic yuvcn n i ici il ii i li ic vji iiui i iciico 

for the attainment of these important ends? What then are we to understand by the 
objection which this paper has combated? What are we to say to the men who 
profess the most flaming zeal for republican government, yet boldly impeach the 
fundamental principle of it; who pretend to be champions for the right and the 
capacity of the people to choose their own rulers, yet maintain that they will prefer 
those only who will immediately and infallibly betray the trust committed to them? 

Were the objection to be read by one who had not seen the mode prescribed by 
the Constitution for the choice of representatives, he could suppose nothing less 
than that some unreasonable qualification of property was annexed to the right of 
suffrage; or that the right of eligibility was limited to persons of particular families 
or fortunes; or at least that the mode prescribed by the State constitutions was in 
some respect or other, very grossly departed from. We have seen how far such a 
supposition would err, as to the two first points. Nor would it, in fact, be less 
erroneous as to the last. The only difference discoverable between the two cases 
is, that each representative of the United States will be elected by five or six 
thousand citizens; whilst in the individual States, the election of a representative is 
left to about as many hundreds. Will it be pretended that this difference is sufficient 
to justify an attachment to the State governments, and an abhorrence to the federal 



we not deprive the people of the immediate choice of their public servants, in 
every instance where the administration of the government does not require as 
many of them as will amount to one for that number of citizens? 

Is the doctrine warranted by FACTS? It was shown in the last paper, that the real 
representation in the British House of Commons very little exceeds the proportion 
of one for every thirty thousand inhabitants. Besides a variety of powerful causes 
not existing here, and which favor in that country the pretensions of rank and 
wealth, no person is eligible as a representative of a county, unless he possess 
real estate of the clear value of six hundred pounds sterling per year; nor of a city 
or borough, unless he possess a like estate of half that annual value. To this 
qualification on the part of the county representatives is added another on the part 
of the county electors, which restrains the right of suffrage to persons having a 
freehold estate of the annual value of more than twenty pounds sterling, according 
to the present rate of money. Notwithstanding these unfavorable circumstances, 
and notwithstanding some very unequal laws in the British code, it cannot be said 
that the representatives of the nation have elevated the few on the ruins of the 
many. 



they cannot be incapable of choosing one. Pennsylvania is an additional example. 
Some of her counties, which elect her State representatives, are almost as large 
as her districts will be by which her federal representatives will be elected. The city 
of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will 
therefore form nearly two districts for the choice of federal representatives. It 
forms, however, but one county, in which every elector votes for each of its 
representatives in the State legislature. And what may appear to be still more 
directly to our purpose, the whole city actually elects a SINGLE MEMBER for the 
executive council. This is the case in all the other counties of the State. 

Are not these facts the most satisfactory proofs of the fallacy which has been 
employed against the branch of the federal government under consideration? Has 
it appeared on trial that the senators of New Hampshire, Massachusetts, and New 
York, or the executive council of Pennsylvania, or the members of the Assembly in 
the two last States, have betrayed any peculiar disposition to sacrifice the many to 
the few, or are in any respect less worthy of their places than the representatives 
and magistrates appointed in other States by very small divisions of the people? 

But there are cases of a stronger complexion than any which I have yet quoted. 
One branch of the legislature of Connecticut is so constituted that each member of 



FEDERALIST No. 58. Objection That The Number 

of Members Will Not Be Augmented as the 

Progress of Population Demands. 

Considered For the Independent Journal Wednesday, 

February 20, 1788. 

MADISON 

To the People of the State of New York: 

THE remaining charge against the House of Representatives, which I am to 
examine, is grounded on a supposition that the number of members will not be 
augmented from time to time, as the progress of population may demand. 

It has been admitted, that this objection, if well supported, would have great 



time to time, the apportionment of representatives to the number of inhabitants, 
under the single exception that each State shall have one representative at least; 
secondly, to augment the number of representatives at the same periods, under 
the sole limitation that the whole number shall not exceed one for every thirty 
thousand inhabitants. If we review the constitutions of the several States, we shall 
find that some of them contain no determinate regulations on this subject, that 
others correspond pretty much on this point with the federal Constitution, and that 
the most effectual security in any of them is resolvable into a mere directory 
provision. 

2. As far as experience has taken place on this subject, a gradual increase of 
representatives under the State constitutions has at least kept pace with that of the 
constituents, and it appears that the former have been as ready to concur in such 
measures as the latter have been to call for them. 

3. There is a peculiarity in the federal Constitution which insures a watchful 
attention in a majority both of the people and of their representatives to a 
constitutional augmentation of the latter. The peculiarity lies in this, that one branch 
of the legislature is a representation of citizens, the other of the States: in the 



the principles of the Constitution. 

It may be alleged, perhaps, that the Senate would be prompted by like motives to 
an adverse coalition; and as their concurrence would be indispensable, the just 
and constitutional views of the other branch might be defeated. This is the difficulty 
which has probably created the most serious apprehensions in the jealous friends 
of a numerous representation. Fortunately it is among the difficulties which, 
existing only in appearance, vanish on a close and accurate inspection. The 
following reflections will, if I mistake not, be admitted to be conclusive and 
satisfactory on this point. 

Notwithstanding the equal authority which will subsist between the two houses on 
all legislative subjects, except the originating of money bills, it cannot be doubted 
that the House, composed of the greater number of members, when supported by 
the more powerful States, and speaking the known and determined sense of a 
majority of the people, will have no small advantage in a question depending on 
the comparative firmness of the two houses. 

This advantage must be increased by the consciousness, felt by the same side of 
being supported in its demands by right, by reason, and by the Constitution; and 



too obvious to be overlooked. As these States will, for a great length of time, 
advance in population with peculiar rapidity, they will be interested infrequent 
reapportionments of the representatives to the number of inhabitants. The large 
States, therefore, who will prevail in the House of Representatives, will have 
nothing to do but to make reapportionments and augmentations mutually 
conditions of each other; and the senators from all the most growing States will be 
bound to contend for the latter, by the interest which their States will feel in the 
former. 

These considerations seem to afford ample security on this subject, and ought 
alone to satisfy all the doubts and fears which have been indulged with regard to it. 
Admitting, however, that they should all be insufficient to subdue the unjust policy of 
the smaller States, or their predominant influence in the councils of the Senate, a 
constitutional and infallible resource still remains with the larger States, by which 
they will be able at all times to accomplish their just purposes. The House of 
Representatives cannot only refuse, but they alone can propose, the supplies 
requisite for the support of government. They, in a word, hold the purseA — that 
powerful instrument by which we behold, in the history of the British Constitution, 
an infant and humble representation of the people gradually enlarging the sphere 



ui ic uc ao ii rvcriy inoi lu yiciu ao u ic uuici r i i icic i^ucouui 10 vviii uicciic i iu uniiouiiy 

with those who reflect that in all cases the smaller the number, and the more 
permanent and conspicuous the station, of men in power, the stronger must be the 
interest which they will individually feel in whatever concerns the government. 
Those who represent the dignity of their country in the eyes of other nations, will be 
particularly sensible to every prospect of public danger, or of dishonorable 
stagnation in public affairs. To those causes we are to ascribe the continual 
triumph of the British House of Commons over the other branches of the 
government, whenever the engine of a money bill has been employed. An absolute 
inflexibility on the side of the latter, although it could not have failed to involve every 
department of the state in the general confusion, has neither been apprehended 
nor experienced. The utmost degree of firmness that can be displayed by the 
federal Senate or President, will not be more than equal to a resistance in which 
they will be supported by constitutional and patriotic principles. 

In this review of the Constitution of the House of Representatives, I have passed 
over the circumstances of economy, which, in the present state of affairs, might 
have had some effect in lessening the temporary number of representatives, and a 
disregard of which would probably have been as rich a theme of declamation 
against the Constitution as has been shown by the smallness of the number 



to act with all their force. In the ancient republics, where the whole body of the 
people assembled in person, a single orator, or an artful statesman, was generally 
seen to rule with as complete a sway as if a sceptre had been placed in his single 
hand. On the same principle, the more multitudinous a representative assembly 
may be rendered, the more it will partake of the infirmities incident to collective 
meetings of the people. Ignorance will be the dupe of cunning, and passion the 
slave of sophistry and declamation. The people can never err more than in 
supposing that by multiplying their representatives beyond a certain limit, they 
strengthen the barrier against the government of a few. Experience will forever 
admonish them that, on the contrary, AFTER SECURING A SUFFICIENT 
NUMBER FOR THE PURPOSES OF SAFETY, OF LOCAL INFORMATION, AND 
OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract 
their own views by every addition to their representatives. The countenance of the 
government may become more democratic, but the soul that animates it will be 
more oligarchic. The machine will be enlarged, but the fewer, and often the more 
secret, will be the springs by which its motions are directed. 

As connected with the objection against the number of representatives, may 
properly be here noticed, that which has been suggested against the number 



take advantage of it to screen themselves from equitable sacrifices to the general 
weal, or, in particular emergencies, to extort unreasonable indulgences. Lastly, it 
would facilitate and foster the baneful practice of secessions; a practice which has 
shown itself even in States where a majority only is required; a practice subversive 
of all the principles of order and regular government; a practice which leads more 
directly to public convulsions, and the ruin of popular governments, than any other 
which has yet been displayed among us. 

PUBLIUS 



FEDERALIST No. 59. Concerning the Power of 
Congress to Regulate the Election of Members 

From the New York Packet. Friday, February 22, 1788. 



PLACES of choosing senators. "(1) This provision has not only been declaimed 
against by those who condemn the Constitution in the gross, but it has been 
censured by those who have objected with less latitude and greater moderation; 
and, in one instance it has been thought exceptionable by a gentleman who has 
declared himself the advocate of every other part of the system. 

I am greatly mistaken, notwithstanding, if there be any article in the whole plan 
more completely defensible than this. Its propriety rests upon the evidence of this 
plain proposition, that EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF 
THE MEANS OF ITS OWN PRESERVATION. Every just reasoner will, at first 
sight, approve an adherence to this rule, in the work of the convention; and will 
disapprove every deviation from it which may not appear to have been dictated by 
the necessity of incorporating into the work some particular ingredient, with which 
a rigid conformity to the rule was incompatible. Even in this case, though he may 
acquiesce in the necessity, yet he will not cease to regard and to regret a 
departure from so fundamental a principle, as a portion of imperfection in the 
system which may prove the seed of future weakness, and perhaps anarchy. 

It will not be alleged, that an election law could have been framed and inserted in 



right to interpose, whenever extraordinary circumstances might render that 
interposition necessary to its safety. 

Nothing can be more evident, than that an exclusive power of regulating elections 
for the national government, in the hands of the State legislatures, would leave the 
existence of the Union entirely at their mercy. They could at any moment annihilate 
it, by neglecting to provide for the choice of persons to administer its affairs. It is to 
little purpose to say, that a neglect or omission of this kind would not be likely to 
take place. The constitutional possibility of the thing, without an equivalent for the 
risk, is an unanswerable objection. Nor has any satisfactory reason been yet 
assigned for incurring that risk. The extravagant surmises of a distempered 
jealousy can never be dignified with that character. If we are in a humor to 
presume abuses of power, it is as fair to presume them on the part of the State 
governments as on the part of the general government. And as it is more 
consonant to the rules of a just theory, to trust the Union with the care of its own 
existence, than to transfer that care to any other hands, if abuses of power are to 
be hazarded on the one side or on the other, it is more rational to hazard them 
where the power would naturally be placed, than where it would unnaturally be 
placed. 



AAO ail UUJCL.LIUII LU LI MO kJUOIUUII, IL I i lay uc iciiiair\cu LI lai LI ic UUI DUIUUUI I Ul LI IC 

national Senate would involve, in its full extent, the danger which it is suggested 
might flow from an exclusive power in the State legislatures to regulate the federal 
elections. It may be alleged, that by declining the appointment of Senators, they 
might at any time give a fatal blow to the Union; and from this it may be inferred, 
that as its existence would be thus rendered dependent upon them in so essential 
a point, there can be no objection to intrusting them with it in the particular case 
under consideration. The interest of each State, it may be added, to maintain its 
representation in the national councils, would be a complete security against an 
abuse of the trust. 

This argument, though specious, will not, upon examination, be found solid. It is 
certainly true that the State legislatures, by forbearing the appointment of senators, 
may destroy the national government. But it will not follow that, because they have 
a power to do this in one instance, they ought to have it in every other. There are 
cases in which the pernicious tendency of such a power may be far more decisive, 
without any motive equally cogent with that which must have regulated the conduct 
of the convention in respect to the formation of the Senate, to recommend their 
admission into the system. So far as that construction may expose the Union to the 
possibility of injury from the State legislatures, it is an evil; but it is an evil which 



yiccuci i ioin. iiuiii a |juvvci in u ic oiaic icyioiaiuico uvci u ic cicuuuiio ui no nuuoc 

of Representatives, than from their power of appointing the members of its 
Senate. The senators are to be chosen for the period of six years; there is to be a 
rotation, by which the seats of a third part of them are to be vacated and 
replenished every two years; and no State is to be entitled to more than two 
senators; a quorum of the body is to consist of sixteen members. The joint result of 
these circumstances would be, that a temporary combination of a few States to 
intermit the appointment of senators, could neither annul the existence nor impair 
the activity of the body; and it is not from a general and permanent combination of 
the States that we can have any thing to fear. The first might proceed from sinister 
designs in the leading members of a few of the State legislatures; the last would 
suppose a fixed and rooted disaffection in the great body of the people, which will 
either never exist at all, or will, in all probability, proceed from an experience of the 
inaptitude of the general government to the advancement of their happiness in 
which event no good citizen could desire its continuance. 

But with regard to the federal House of Representatives, there is intended to be a 
general election of members once in two years. If the State legislatures were to be 
invested with an exclusive power of regulating these elections, every period of 
making them would be a delicate crisis in the national situation, which might issue 



oicuco, C3LM i iuicilcu uy u ic iicuuicu 1 1 vcuoi up ui puvvci , cu iu uy li ic i lupccj ui uci^uiicu 

aggrandizement, and supported by a strong faction in each of those States, may 
be in a very opposite temper. This diversity of sentiment between a majority of the 
people, and the individuals who have the greatest credit in their councils, is 
exemplified in some of the States at the present moment, on the present question. 
The scheme of separate confederacies, which will always multiply the chances of 
ambition, will be a never failing bait to all such influential characters in the State 
administrations as are capable of preferring their own emolument and 
advancement to the public weal. With so effectual a weapon in their hands as the 
exclusive power of regulating elections for the national government, a combination 
of a few such men, in a few of the most considerable States, where the temptation 
will always be the strongest, might accomplish the destruction of the Union, by 
seizing the opportunity of some casual dissatisfaction among the people (and 
which perhaps they may themselves have excited), to discontinue the choice of 
members for the federal House of Representatives. It ought never to be forgotten, 
that a firm union of this country, under an efficient government, will probably be an 
increasing object of jealousy to more than one nation of Europe; and that 
enterprises to subvert it will sometimes originate in the intrigues of foreign powers, 
and will seldom fail to be patronized and abetted by some of them. Its 



FEDERALIST No. 60. The Same Subject 

Continued (Concerning the Power of Congress 

to Regulate the Election of Members) 

From The Independent Journal. Saturday, February 23, 1788. 

HAMILTON 

To the People of the State of New York: 

WE HAVE seen, that an uncontrollable power over the elections to the federal 
government could not, without hazard, be committed to the State legislatures. Let 
us now see, what would be the danger on the other side; that is, from confiding the 
ultimate right of regulating its own elections to the Union itself. It is not pretended, 
that this right would ever be used for the exclusion of any State from its share in the 
representation. The interest of all would, in this respect at least, be the security of 



iiic ii i ipiuucujiiiiy ui u ic ciLLciiipL 1 1 lay uc oauoiauLui ny iiiiciicu iiuiii u no on lyic 

reflection, that it could never be made without causing an immediate revolt of the 
great body of the people, headed and directed by the State governments. It is not 
difficult to conceive that this characteristic right of freedom may, in certain turbulent 
and factious seasons, be violated, in respect to a particular class of citizens, by a 
victorious and overbearing majority; but that so fundamental a privilege, in a 
country so situated and enlightened, should be invaded to the prejudice of the 
great mass of the people, by the deliberate policy of the government, without 
occasioning a popular revolution, is altogether inconceivable and incredible. 

In addition to this general reflection, there are considerations of a more precise 
nature, which forbid all apprehension on the subject. The dissimilarity in the 
ingredients which will compose the national government, and still more in the 
manner in which they will be brought into action in its various branches, must form 
a powerful obstacle to a concert of views in any partial scheme of elections. There 
is sufficient diversity in the state of property, in the genius, manners, and habits of 
the people of the different parts of the Union, to occasion a material diversity of 
disposition in their representatives towards the different ranks and conditions in 
society. And though an intimate intercourse under the same government will 
promote a gradual assimilation in some of these respects, yet there are causes, 



uuuy, uai i aiicoi li ic opiiu vviiiuii win uiicul u ic uiiuiuc; ui no 1 1 ici i iucio. i i ic 

collective sense of the State legislatures can never be influenced by extraneous 
circumstances of that sort; a consideration which alone ought to satisfy us that the 
discrimination apprehended would never be attempted. For what inducement 
could the Senate have to concur in a preference in which itself would not be 
included? Or to what purpose would it be established, in reference to one branch 
of the legislature, if it could not be extended to the other? The composition of the 
one would in this case counteract that of the other. And we can never suppose that 
it would embrace the appointments to the Senate, unless we can at the same time 
suppose the voluntary co-operation of the State legislatures. If we make the latter 
supposition, it then becomes immaterial where the power in question is placedA 
— whether in their hands or in those of the Union. 

But what is to be the object of this capricious partiality in the national councils? Is it 
to be exercised in a discrimination between the different departments of industry, 
or between the different kinds of property, or between the different degrees of 
property? Will it lean in favor of the landed interest, or the moneyed interest, or the 
mercantile interest, or the manufacturing interest? Or, to speak in the fashionable 
language of the adversaries to the Constitution, will it court the elevation of "the 
wealthy and the well-born," to the exclusion and debasement of all the rest of the 



In most, if not all of them, agriculture is predominant. In a few of them, however, 
commerce nearly divides its empire, and in most of them has a considerable 
share of influence. In proportion as either prevails, it will be conveyed into the 
national representation; and for the very reason, that this will be an emanation from 
a greater variety of interests, and in much more various proportions, than are to be 
found in any single State, it will be much less apt to espouse either of them with a 
decided partiality, than the representation of any single State. 

In a country consisting chiefly of the cultivators of land, where the rules of an equal 
representation obtain, the landed interest must, upon the whole, preponderate in 
the government. As long as this interest prevails in most of the State legislatures, 
so long it must maintain a correspondent superiority in the national Senate, which 
will generally be a faithful copy of the majorities of those assemblies. It cannot 
therefore be presumed, that a sacrifice of the landed to the mercantile class will 
ever be a favorite object of this branch of the federal legislature. In applying thus 
particularly to the Senate a general observation suggested by the situation of the 
country, I am governed by the consideration, that the credulous votaries of State 
power cannot, upon their own principles, suspect, that the State legislatures would 
be warped from their duty by any external influence. But in reality the same 



Ol IUUIU piCVdll III LI IC UUUIIL.IIO Ul LI IC VJIIIUII LI Idl I III LI IU5C Ul cii iy U I I LO I I ICI I IUCI o. 

Secondly, that there would be no temptation to violate the Constitution in favor of 
the landed class, because that class would, in the natural course of things, enjoy 
as great a preponderancy as itself could desire. And thirdly, that men accustomed 
to investigate the sources of public prosperity upon a large scale, must be too well 
convinced of the utility of commerce, to be inclined to inflict upon it so deep a 
wound as would result from the entire exclusion of those who would best 
understand its interest from a share in the management of them. The importance 
of commerce, in the view of revenue alone, must effectually guard it against the 
enmity of a body which would be continually importuned in its favor, by the urgent 
calls of public necessity. 

I the rather consult brevity in discussing the probability of a preference founded 
upon a discrimination between the different kinds of industry and property, 
because, as far as I understand the meaning of the objectors, they contemplate a 
discrimination of another kind. They appear to have in view, as the objects of the 
preference with which they endeavor to alarm us, those whom they designate by 
the description of "the wealthy and the well-born." These, it seems, are to be 
exalted to an odious pre-eminence over the rest of their fellow-citizens. Atone 
time, however, their elevation is to be a necessary consequence of the smallness 



[jicuci/coouior ii li ic iciiici 10 u ic uaac, v^ao cvciy n iicmyci il i i icu i i\i iuvvo il lu uc,{±)j 

is it not evident that the policy of confining the places of election to particular 
districts would be as subversive of its own aim as it would be exceptionable on 
every other account? The truth is, that there is no method of securing to the rich the 
preference apprehended, but by prescribing qualifications of property either for 
those who may elect or be elected. But this forms no part of the power to be 
conferred upon the national government. Its authority would be expressly restricted 
to the regulation of the TIMES, the PLACES, the MANNER of elections. The 
qualifications of the persons who may choose or be chosen, as has been 
remarked upon other occasions, are defined and fixed in the Constitution, and are 
unalterable by the legislature. 

Let it, however, be admitted, for argument sake, that the expedient suggested 
might be successful; and let it at the same time be equally taken for granted that all 
the scruples which a sense of duty or an apprehension of the danger of the 
experiment might inspire, were overcome in the breasts of the national rulers, still I 
imagine it will hardly be pretended that they could ever hope to carry such an 
enterprise into execution without the aid of a military force sufficient to subdue the 
resistance of the great body of the people. The improbability of the existence of a 
force equal to that object has been discussed and demonstrated in different parts 



might accompany them, might terminate in the dismission, disgrace, and ruin of 
their authors? Would they not fear that citizens, not less tenacious than conscious 
of their rights, would flock from the remote extremes of their respective States to 
the places of election, to overthrow their tyrants, and to substitute men who would 
be disposed to avenge the violated majesty of the people? 

PUBLIUS 

1. Particularly in the Southern States and in this State. 



FEDERALIST No. 61. The Same Subject 

Continued (Concerning the Power of Congress 

to Regulate the Election of Members) 



counties where the electors resided. This, say they, was a necessary precaution 
against an abuse of the power. A declaration of this nature would certainly have 
been harmless; so far as it would have had the effect of quieting apprehensions, it 
might not have been undesirable. But it would, in fact, have afforded little or no 
additional security against the danger apprehended; and the want of it will never 
be considered, by an impartial and judicious examiner, as a serious, still less as 
an insuperable, objection to the plan. The different views taken of the subject in the 
two preceding papers must be sufficient to satisfy all dispassionate and 
discerning men, that if the public liberty should ever be the victim of the ambition of 
the national rulers, the power under examination, at least, will be guiltless of the 
sacrifice. 

If those who are inclined to consult their jealousy only, would exercise it in a careful 
inspection of the several State constitutions, they would find little less room for 
disquietude and alarm, from the latitude which most of them allow in respect to 
elections, than from the latitude which is proposed to be allowed to the national 
government in the same respect. A review of their situation, in this particular, 
would tend greatly to remove any ill impressions which may remain in regard to 
this matter. But as that view would lead into long and tedious details, I shall content 



electors of the members both of the Senate and Assembly for that county and 
district? Can we imagine that the electors who reside in the remote subdivisions 
of the counties of Albany, Saratoga, Cambridge, etc., or in any part of the county of 
Montgomery, would take the trouble to come to the city of Albany, to give their 
votes for members of the Assembly or Senate, sooner than they would repair to 
the city of New York, to participate in the choice of the members of the federal 
House of Representatives? The alarming indifference discoverable in the exercise 
of so invaluable a privilege under the existing laws, which afford every facility to it, 
furnishes a ready answer to this question. And, abstracted from any experience on 
the subject, we can be at no loss to determine, that when the place of election is at 
an INCONVENIENT DISTANCE from the elector, the effect upon his conduct will 
be the same whether that distance be twenty miles or twenty thousand miles. 
Hence it must appear, that objections to the particular modification of the federal 
power of regulating elections will, in substance, apply with equal force to the 
modification of the like power in the constitution of this State; and for this reason it 
will be impossible to acquit the one, and to condemn the other. A similar 
comparison would lead to the same conclusion in respect to the constitutions of 
most of the other States. 



the representatives of the people of the United States? If they cannot do this, they 
ought at least to prove to us that it is easier to subvert the liberties of three millions 
of people, with the advantage of local governments to head their opposition, than 
of two hundred thousand people who are destitute of that advantage. And in 
relation to the point immediately under consideration, they ought to convince us 
that it is less probable that a predominant faction in a single State should, in order 
to maintain its superiority, incline to a preference of a particular class of electors, 
than that a similar spirit should take possession of the representatives of thirteen 
States, spread over a vast region, and in several respects distinguishable from 
each other by a diversity of local circumstances, prejudices, and interests. 

Hitherto my observations have only aimed at a vindication of the provision in 
question, on the ground of theoretic propriety, on that of the danger of placing the 
power elsewhere, and on that of the safety of placing it in the manner proposed. 
But there remains to be mentioned a positive advantage which will result from this 
disposition, and which could not as well have been obtained from any other: I 
allude to the circumstance of uniformity in the time of elections for the federal 
House of Representatives. It is more than possible that this uniformity may be 
found by experience to be of great importance to the public welfare, both as a 



resist. I am inclined to think that treble the duration in office, with the condition of a 
total dissolution of the body at the same time, might be less formidable to liberty 
than one third of that duration subject to gradual and successive alterations. 

Uniformity in the time of elections seems not less requisite for executing the idea 
of a regular rotation in the Senate, and for conveniently assembling the legislature 
at a stated period in each year. 

It may be asked, Why, then, could not a time have been fixed in the Constitution? 
As the most zealous adversaries of the plan of the convention in this State are, in 
general, not less zealous admirers of the constitution of the State, the question 
may be retorted, and it may be asked, Why was not a time for the like purpose 
fixed in the constitution of this State? No better answer can be given than that it 
was a matter which might safely be entrusted to legislative discretion; and that if a 
time had been appointed, it might, upon experiment, have been found less 
convenient than some other time. The same answer may be given to the question 
put on the other side. And it may be added that the supposed danger of a gradual 
change being merely speculative, it would have been hardly advisable upon that 
speculation to establish, as a fundamental point, what would deprive several 
States of the convenience of having the elections for their own governments and 



rui uic mucpciiuciii juui ncu. vvcuncsuay, rcuiuaiy £- 1 , kuo 

MADISON 

To the People of the State of New York: 

HAVING examined the constitution of the House of Representatives, and 
answered such of the objections against it as seemed to merit notice, I enter next 
on the examination of the Senate. The heads into which this member of the 
government may be considered are: I. The qualification of senators; II. The 
appointment of them by the State legislatures; III. The equality of representation in 
the Senate; IV. The number of senators, and the term for which they are to be 
elected; V. The powers vested in the Senate. 

I. The qualifications proposed for senators, as distinguished from those of 
representatives, consist in a more advanced age and a longer period of 
citizenship. A senator must be thirty years of age at least; as a representative must 
be twenty-five. And the former must have been a citizen nine years; as seven years 
are required for the latter. The propriety of these distinctions is explained by the 



ii. il 10 ci^ucuiy ui ii ici/caaaiy lu uiicuc ui i u ic appuu iu i ici il ui oci iciiuio uy u ic oiaic 

legislatures. Among the various modes which might have been devised for 
constituting this branch of the government, that which has been proposed by the 
convention is probably the most congenial with the public opinion. It is 
recommended by the double advantage of favoring a select appointment, and of 
giving to the State governments such an agency in the formation of the federal 
government as must secure the authority of the former, and may form a convenient 
link between the two systems. 

III. The equality of representation in the Senate is another point, which, being 
evidently the result of compromise between the opposite pretensions of the large 
and the small States, does not call for much discussion. If indeed it be right, that 
among a people thoroughly incorporated into one nation, every district ought to 
have a PROPORTIONAL share in the government, and that among independent 
and sovereign States, bound together by a simple league, the parties, however 
unequal in size, ought to have an EQUAL share in the common councils, it does 
not appear to be without some reason that in a compound republic, partaking both 
of the national and federal character, the government ought to be founded on a 
mixture of the principles of proportional and equal representation. But it is 
superfluous to try, by the standard of theory, a part of the Constitution which is 



In this spirit it may be remarked, that the equal vote allowed to each State is at 
once a constitutional recognition of the portion of sovereignty remaining in the 
individual States, and an instrument for preserving that residuary sovereignty. So 
far the equality ought to be no less acceptable to the large than to the small States; 
since they are not less solicitous to guard, by every possible expedient, against an 
improper consolidation of the States into one simple republic. 

Another advantage accruing from this ingredient in the constitution of the Senate 
is, the additional impediment it must prove against improper acts of legislation. No 
law or resolution can now be passed without the concurrence, first, of a majority of 
the people, and then, of a majority of the States. It must be acknowledged that this 
complicated check on legislation may in some instances be injurious as well as 
beneficial; and that the peculiar defense which it involves in favor of the smaller 
States, would be more rational, if any interests common to them, and distinct from 
those of the other States, would otherwise be exposed to peculiar danger. But as 
the larger States will always be able, by their power over the supplies, to defeat 
unreasonable exertions of this prerogative of the lesser States, and as the faculty 
and excess of law-making seem to be the diseases to which our governments are 
most liable, it is not impossible that this part of the Constitution may be more 



dividing the power with, a first, must be in all cases a salutary check on the 
government. It doubles the security to the people, by requiring the concurrence of 
two distinct bodies in schemes of usurpation or perfidy, where the ambition or 
corruption of one would otherwise be sufficient. This is a precaution founded on 
such clear principles, and now so well understood in the United States, that it 
would be more than superfluous to enlarge on it. I will barely remark, that as the 
improbability of sinister combinations will be in proportion to the dissimilarity in the 
genius of the two bodies, it must be politic to distinguish them from each other by 
every circumstance which will consist with a due harmony in all proper measures, 
and with the genuine principles of republican government. 

Second. The necessity of a senate is not less indicated by the propensity of all 
single and numerous assemblies to yield to the impulse of sudden and violent 
passions, and to be seduced by factious leaders into intemperate and pernicious 
resolutions. Examples on this subject might be cited without number; and from 
proceedings within the United States, as well as from the history of other nations. 
But a position that will not be contradicted, need not be proved. All that need be 
remarked is, that a body which is to correct this infirmity ought itself to be free from 
it, and consequently ought to be less numerous. It ought, moreover, to possess 



ci i iuai laooi i ici no ui aaiiiciiuci 10 iu uc uiiaiycu ui i u ic uiuiiucio ui uui yuvci i n i ici no, 

and that these have proceeded from the heads rather than the hearts of most of 
the authors of them. What indeed are all the repealing, explaining, and amending 
laws, which fill and disgrace our voluminous codes, but so many monuments of 
deficient wisdom; so many impeachments exhibited by each succeeding against 
each preceding session; so many admonitions to the people, of the value of those 
aids which may be expected from a well-constituted senate? 

A good government implies two things: first, fidelity to the object of government, 
which is the happiness of the people; secondly, a knowledge of the means by 
which that object can be best attained. Some governments are deficient in both 
these qualities; most governments are deficient in the first. I scruple not to assert, 
that in American governments too little attention has been paid to the last. The 
federal Constitution avoids this error; and what merits particular notice, it provides 
for the last in a mode which increases the security for the first. 

Fourth. The mutability in the public councils arising from a rapid succession of new 
members, however qualified they may be, points out, in the strongest manner, the 
necessity of some stable institution in the government. Every new election in the 
States is found to change one half of the representatives. From this change of men 



be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, 
is marked at once, by all prudent people, as a speedy victim to his own 
unsteadiness and folly. His more friendly neighbors may pity him, but all will 
decline to connect their fortunes with his; and not a few will seize the opportunity of 
making their fortunes out of his. One nation is to another what one individual is to 
another; with this melancholy distinction perhaps, that the former, with fewer of the 
benevolent emotions than the latter, are under fewer restraints also from taking 
undue advantage from the indiscretions of each other. Every nation, consequently, 
whose affairs betray a want of wisdom and stability, may calculate on every loss 
which can be sustained from the more systematic policy of their wiser neighbors. 
But the best instruction on this subject is unhappily conveyed to America by the 
example of her own situation. She finds that she is held in no respect by her 
friends; that she is the derision of her enemies; and that she is a prey to every 
nation which has an interest in speculating on her fluctuating councils and 
embarrassed affairs. 

The internal effects of a mutable policy are still more calamitous. It poisons the 
blessing of liberty itself. It will be of little avail to the people, that the laws are made 
by men of their own choice, if the laws be so voluminous that they cannot be read, 



uui iocl|uci iuco, a naivcai, icaicu iiul uy u ici i icscivco, uui uy u ic iuiio ai iu uaico ui 

the great body of their fellow-citizens. This is a state of things in which it may be 
said with some truth that laws are made for the FEW, not for the MANY. 

In another point of view, great injury results from an unstable government. The want 
of confidence in the public councils damps every useful undertaking, the success 
and profit of which may depend on a continuance of existing arrangements. What 
prudent merchant will hazard his fortunes in any new branch of commerce when he 
knows not but that his plans may be rendered unlawful before they can be 
executed? What farmer or manufacturer will lay himself out for the encouragement 
given to any particular cultivation or establishment, when he can have no 
assurance that his preparatory labors and advances will not render him a victim to 
an inconstant government? In a word, no great improvement or laudable enterprise 
can go forward which requires the auspices of a steady system of national policy. 

But the most deplorable effect of all is that diminution of attachment and reverence 
which steals into the hearts of the people, towards a political system which betrays 
so many marks of infirmity, and disappoints so many of their flattering hopes. No 
government, any more than an individual, will long be respected without being truly 
respectable; nor be truly respectable, without possessing a certain portion of order 



rui uie iiiucpciiuciii juui iicii. ocuuiuciy, mcuirii J., kuo 

MADISON 

To the People of the State of New York: 

A FIFTH desideratum, illustrating the utility of a senate, is the want of a due sense 
of national character. Without a select and stable member of the government, the 
esteem of foreign powers will not only be forfeited by an unenlightened and 
variable policy, proceeding from the causes already mentioned, but the national 
councils will not possess that sensibility to the opinion of the world, which is 
perhaps not less necessary in order to merit, than it is to obtain, its respect and 
confidence. 

An attention to the judgment of other nations is important to every government for 
two reasons: the one is, that, independently of the merits of any particular plan or 
measure, it is desirable, on various accounts, that it should appear to other nations 
as the offspring of a wise and honorable policy; the second is, that in doubtful 
cases, particularly where the national councils may be warped by some strong 



uuiauiy iiivcolcu vviui jjuuiiu liuol, uiai u ic pnuc ai iu uui iocl|uci iuc ui ho i i ici i iucio 

may be sensibly incorporated with the reputation and prosperity of the community. 
The half-yearly representatives of Rhode Island would probably have been little 
affected in their deliberations on the iniquitous measures of that State, by 
arguments drawn from the light in which such measures would be viewed by 
foreign nations, or even by the sister States; whilst it can scarcely be doubted that 
if the concurrence of a select and stable body had been necessary, a regard to 
national character alone would have prevented the calamities under which that 
misguided people is now laboring. 

I add, as a SIXTH defect the want, in some important cases, of a due 
responsibility in the government to the people, arising from that frequency of 
elections which in other cases produces this responsibility. This remark will, 
perhaps, appear not only new, but paradoxical. It must nevertheless be 
acknowledged, when explained, to be as undeniable as it is important. 

Responsibility, in order to be reasonable, must be limited to objects within the 
power of the responsible party, and in order to be effectual, must relate to 
operations of that power, of which a ready and proper judgment can be formed by 
the constituents. The objects of government may be divided into two general 



respectively have on events resulting from the mixed transactions of several years. 
It is sufficiently difficult to preserve a personal responsibility in the members of a 
NUMEROUS body, for such acts of the body as have an immediate, detached, 
and palpable operation on its constituents. 

The proper remedy for this defect must be an additional body in the legislative 
department, which, having sufficient permanency to provide for such objects as 
require a continued attention, and a train of measures, may be justly and effectually 
answerable for the attainment of those objects. 

Thus far I have considered the circumstances which point out the necessity of a 
well-constructed Senate only as they relate to the representatives of the people. To 
a people as little blinded by prejudice or corrupted by flattery as those whom I 
address, I shall not scruple to add, that such an institution maybe sometimes 
necessary as a defense to the people against their own temporary errors and 
delusions. As the cool and deliberate sense of the community ought, in all 
governments, and actually will, in all free governments, ultimately prevail over the 
views of its rulers; so there are particular moments in public affairs when the 
people, stimulated by some irregular passion, or some illicit advantage, or misled 
by the artful misrepresentations of interested men, may call for measures which 



LI IC UUVVUCU II II ICIUIICU ILO Ul CI Ol I ICUI UIOLIIUL, UC OUUJCLrL LU LI IC 1 1 IICULI Ul I U I VIUICIIL 

passions, or to the danger of combining in pursuit of unjust measures. I am far 
from denying that this is a distinction of peculiar importance. I have, on the 
contrary, endeavored in a former paper to show, that it is one of the principal 
recommendations of a confederated republic. At the same time, this advantage 
ought not to be considered as superseding the use of auxiliary precautions. It may 
even be remarked, that the same extended situation, which will exempt the people 
of America from some of the dangers incident to lesser republics, will expose 
them to the inconveniency of remaining for a longer time under the influence of 
those misrepresentations which the combined industry of interested men may 
succeed in distributing among them. 

It adds no small weight to all these considerations, to re collect that hi story informs 
us of no long-lived republic which had not a senate. Sparta, Rome, and Carthage 
are, in fact, the only states to whom that character can be applied. In each of the 
two first there was a senate for life. The constitution of the senate in the last is less 
known. Circumstantial evidence makes it probable that it was not different in this 
particular from the two others. It is at least certain, that it had some quality or other 
which rendered it an anchor against popular fluctuations; and that a smaller 
council, drawn out of the senate, was appointed not only for life, but filled up 



the people, and to the people themselves. There are others peculiar to the former, 
which require the control of such an institution. The people can never wilfully betray 
their own interests; but they may possibly be betrayed by the representatives of the 
people; and the danger will be evidently greater where the whole legislative trust is 
lodged in the hands of one body of men, than where the concurrence of separate 
and dissimilar bodies is required in every public act. 

The difference most relied on, between the American and other republics, consists 
in the principle of representation; which is the pivot on which the former move, and 
which is supposed to have been unknown to the latter, or at least to the ancient 
part of them. The use which has been made of this difference, in reasonings 
contained in former papers, will have shown that I am disposed neither to deny its 
existence nor to undervalue its importance. I feel the less restraint, therefore, in 
observing, that the position concerning the ignorance of the ancient governments 
on the subject of representation, is by no means precisely true in the latitude 
commonly given to it. Without entering into a disquisition which here would be 
misplaced, I will refer to a few known facts, in support of what I advance. 

In the most pure democracies of Greece, many of the executive functions were 
performed, not by the people themselves, but by officers elected by the people, 



ouiii ayco ui li ic pcujjic. oiiiiiiai 11 iolcii iuco iinym uc uaucu in niuai, n nuian uic 

popular governments of antiquity. 

Lastly, in Sparta we meet with the Ephori, and in Rome with the Tribunes; two 
bodies, small indeed in numbers, but annually ELECTED BYTHE WHOLE BODY 
OF THE PEOPLE, and considered as the REPRESENTATIVES of the people, 
almost in their PLENIPOTENTIARY capacity. The Cosmi of Crete were also 
annually ELECTED BY THE PEOPLE, and have been considered by some 
authors as an institution analogous to those of Sparta and Rome, with this 
difference only, that in the election of that representative body the right of suffrage 
was communicated to a part only of the people. 

From these facts, to which many others might be added, it is clear that the 
principle of representation was neither unknown to the ancients nor wholly 
overlooked in their political constitutions. The true distinction between these and 
the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, 
IN THEIR COLLECTIVE CAPACITY, from any share in the LATTER, and not in the 
TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the 
administration of the FORMER. The distinction, however, thus qualified, must be 
admitted to leave a most advantageous superiority in favor of the United States. 



To this general answer, the general reply ought to be sufficient, that liberty may be 
endangered by the abuses of liberty as well as by the abuses of power; that there 
are numerous instances of the former as well as of the latter; and that the former, 
rather than the latter, are apparently most to be apprehended by the United States. 
But a more particular reply may be given. 

Before such a revolution can be effected, the Senate, it is to be observed, must in 
the first place corrupt itself; must next corrupt the State legislatures; must then 
corrupt the House of Representatives; and must finally corrupt the people at large. 
It is evident that the Senate must be first corrupted before it can attempt an 
establishment of tyranny. Without corrupting the State legislatures, it cannot 
prosecute the attempt, because the periodical change of members would 
otherwise regenerate the whole body. Without exerting the means of corruption 
with equal success on the House of Representatives, the opposition of that 
coequal branch of the government would inevitably defeat the attempt; and without 
corrupting the people themselves, a succession of new representatives would 
speedily restore all things to their pristine order. Is there any man who can 
seriously persuade himself that the proposed Senate can, by any possible means 
within the compass of human address, arrive at the object of a lawless ambition, 



ucu lyci vviiiuii i iaa uccn au luuuiy piuuia.ii i icu, ounic oyi i ipiui 1 10 ai icaoi ui a iii\c 

danger ought by this time to have been betrayed by the Senate of Maryland, but no 
such symptoms have appeared. On the contrary, the jealousies at first entertained 
by men of the same description with those who view with terror the correspondent 
part of the federal Constitution, have been gradually extinguished by the progress 
of the experiment; and the Maryland constitution is daily deriving, from the salutary 
operation of this part of it, a reputation in which it will probably not be rivalled by 
that of any State in the Union. 

But if anything could silence the jealousies on this subject, it ought to be the British 
example. The Senate there instead of being elected for a term of six years, and of 
being unconfined to particular families or fortunes, is an hereditary assembly of 
opulent nobles. The House of Representatives, instead of being elected for two 
years, and by the whole body of the people, is elected for seven years, and, in very 
great proportion, by a very small proportion of the people. Here, unquestionably, 
ought to be seen in full display the aristocratic usurpations and tyranny which are at 
some future period to be exemplified in the United States. Unfortunately, however, 
for the anti-federal argument, the British history informs us that this hereditary 
assembly has not been able to defend itself against the continual encroachments 
of the House of Representatives; and that it no sooner lost the support of the 



yuvci i ii i ici il, vvi iiui i i iaa u ic |jcu|jic ui i ilo oiuc. i u li icic caoi i i|jico i i nyi il uc auucu 

that of Carthage, whose senate, according to the testimony of Polybius, instead of 
drawing all power into its vortex, had, at the commencement of the second Punic 
War, lost almost the whole of its original portion. 

Besides the conclusive evidence resulting from this assemblage of facts, that the 
federal Senate will never be able to transform itself, by gradual usurpations, into an 
independent and aristocratic body, we are warranted in believing, that if such a 
revolution should ever happen from causes which the foresight of man cannot 
guard against, the House of Representatives, with the people on their side, will at 
all times be able to bring back the Constitution to its primitive form and principles. 
Against the force of the immediate representatives of the people, nothing will be 
able to maintain even the constitutional authority of the Senate, but such a display 
of enlightened policy, and attachment to the public good, as will divide with that 
branch of the legislature the affections and support of the entire body of the people 
themselves. 

PUBLIUS 



iu uit: rt:u(jit: ui uic oiciit: ui i\it:vv tuik. 

IT IS a just and not a new observation, that enemies to particular persons, and 
opponents to particular measures, seldom confine their censures to such things 
only in either as are worthy of blame. Unless on this principle, it is difficult to 
explain the motives of their conduct, who condemn the proposed Constitution in 
the aggregate, and treat with severity some of the most unexceptionable articles in 
it. 

The second section gives power to the President, "BY AND WITH THE ADVICE 
AND CONSENT OF THE SENATE, TO MAKE TREATIES, PROVIDED TWO 
THIRDS OF THE SENATORS PRESENT CONCUR." 

The power of making treaties is an important one, especially as it relates to war, 
peace, and commerce; and it should not be delegated but in such a mode, and 
with such precautions, as will afford the highest security that it will be exercised by 
men the best qualified for the purpose, and in the manner most conducive to the 
public good. The convention appears to have been attentive to both these points: 
they have directed the President to be chosen by select bodies of electors, to be 
deputed by the people for that express purpose; and they have committed the 



juol yiuui iuo iui uui iiiuci luc iiic wui Diiiuuui i 1 1 icii ii ic3i3 vciy pcuu^uicu ClUCI ILIUI I LU 

this object. By excluding men under thirty-five from the first office, and those under 
thirty from the second, it confines the electors to men of whom the people have 
had time to form a judgment, and with respect to whom they will not be liable to be 
deceived by those brilliant appearances of genius and patriotism, which, like 
transient meteors, sometimes mislead as well as dazzle. If the observation be well 
founded, that wise kings will always be served by able ministers, it is fair to argue, 
that as an assembly of select electors possess, in a greater degree than kings, the 
means of extensive and accurate information relative to men and characters, so 
will their appointments bear at least equal marks of discretion and discernment. 
The inference which naturally results from these considerations is this, that the 
President and senators so chosen will always be of the number of those who best 
understand our national interests, whether considered in relation to the several 
States or to foreign nations, who are best able to promote those interests, and 
whose reputation for integrity inspires and merits confidence. With such men the 
power of making treaties may be safely lodged. 

Although the absolute necessity of system, in the conduct of any business, is 
universally known and acknowledged, yet the high importance of it in national 
affairs has not yet become sufficiently impressed on the public mind. They who 



as will give them an opportunity of greatly extending their political information, and 
of rendering their accumulating experience more and more beneficial to their 
country. Nor has the convention discovered less prudence in providing for the 
frequent elections of senators in such a way as to obviate the inconvenience of 
periodically transferring those great affairs entirely to new men; for by leaving a 
considerable residue of the old ones in place, uniformity and order, as well as a 
constant succession of official information will be preserved. 

There are a few who will not admit that the affairs of trade and navigation should 
be regulated by a system cautiously formed and steadily pursued; and that both 
our treaties and our laws should correspond with and be made to promote it. It is 
of much consequence that this correspondence and conformity be carefully 
maintained; and they who assent to the truth of this position will see and confess 
that it is well provided for by making concurrence of the Senate necessary both to 
treaties and to laws. 

It seldom happens in the negotiation of treaties, of whatever nature, but that perfect 
SECRECY and immediate DESPATCH are sometimes requisite. These are 
cases where the most useful intelligence may be obtained, if the persons 
possessing it can be relieved from apprehensions of discovery. Those 



uiicuuuii, cu iu ociuuiii iuuiiu lu i ui i ivviuc cAauuy ii i u ic ocu i ic 1 1 icu n ici ui nicaouic. 

To discern and to profit by these tides in national affairs is the business of those 
who preside over them; and they who have had much experience on this head 
inform us, that there frequently are occasions when days, nay, even when hours, 
are precious. The loss of a battle, the death of a prince, the removal of a minister, 
or other circumstances intervening to change the present posture and aspect of 
affairs, may turn the most favorable tide into a course opposite to our wishes. As 
in the field, so in the cabinet, there are moments to be seized as they pass, and 
they who preside in either should be left in capacity to improve them. So often and 
so essentially have we heretofore suffered from the want of secrecy and despatch, 
that the Constitution would have been inexcusably defective, if no attention had 
been paid to those objects. Those matters which in negotiations usually require 
the most secrecy and the most despatch, are those preparatory and auxiliary 
measures which are not otherwise important in a national view, than as they tend 
to facilitate the attainment of the objects of the negotiation. For these, the 
President will find no difficulty to provide; and should any circumstance occur 
which requires the advice and consent of the Senate, he may at any time convene 
them. Thus we see that the Constitution provides that our negotiations for treaties 
shall have every advantage which can be derived from talents, information, 



whether in the executive or in the judicial department, have as much legal validity 
and obligation as if they proceeded from the legislature; and therefore, whatever 
name be given to the power of making treaties, or however obligatory they may be 
when made, certain it is, that the people may, with much propriety, commit the 
power to a distinct body from the legislature, the executive, or the judicial. It surely 
does not follow, that because they have given the power of making laws to the 
legislature, that therefore they should likewise give them the power to do every 
other act of sovereignty by which the citizens are to be bound and affected. 

Others, though content that treaties should be made in the mode proposed, are 
averse to their being the SUPREME laws of the land. They insist, and profess to 
believe, that treaties like acts of assembly, should be repealable at pleasure. This 
idea seems to be new and peculiar to this country, but new errors, as well as new 
truths, often appear. These gentlemen would do well to reflect that a treaty is only 
another name for a bargain, and that it would be impossible to find a nation who 
would make any bargain with us, which should be binding on them ABSOLUTELY, 
but on us only so long and so far as we may think proper to be bound by it. They 
who make laws may, without doubt, amend or repeal them; and it will not be 
disputed that they who make treaties may alter or cancel them; but still let us not 



ouiiic, u icll u ic ricdiuciu anu oci iaic may inai\c liccllico vvili iuul ai i ct>|uai eye lu 

the interests of all the States. Others suspect that two thirds will oppress the 
remaining third, and ask whether those gentlemen are made sufficiently- 
responsible for their conduct; whether, if they act corruptly, they can be punished; 
and if they make disadvantageous treaties, how are we to get rid of those 
treaties? 

As all the States are equally represented in the Senate, and by men the most able 
and the most willing to promote the interests of their constituents, they will all have 
an equal degree of influence in that body, especially while they continue to be 
careful in appointing proper persons, and to insist on their punctual attendance. In 
proportion as the United States assume a national form and a national character, 
so will the good of the whole be more and more an object of attention, and the 
government must be a weak one indeed, if it should forget that the good of the 
whole can only be promoted by advancing the good of each of the parts or 
members which compose the whole. It will not be in the power of the President and 
Senate to make any treaties by which they and their families and estates will not 
be equally bound and affected with the rest of the community; and, having no 
private interests distinct from that of the nation, they will be under no temptations to 
neglect the latter. 



attachments, afford security for their fidelity. In short, as the Constitution has taken 
the utmost care that they shall be men of talents and integrity, we have reason to 
be persuaded that the treaties they make will be as advantageous as, all 
circumstances considered, could be made; and so far as the fear of punishment 
and disgrace can operate, that motive to good behavior is amply afforded by the 
article on the subject of impeachments. 

PUBLIUS 



FEDERALIST No. 65. The Powers of the Senate 

Continued 

From the New York Packet. Friday, March 7, 1788. 



^^ X^ 1 IVALV/ i 



A well-constituted court for the trial of impeachments is an object not more to be 
desired than difficult to be obtained in a government wholly elective. The subjects 
of its jurisdiction are those offenses which proceed from the misconduct of public 
men, or, in other words, from the abuse or violation of some public trust. They are 
of a nature which may with peculiar propriety be denominated POLITICAL, as they 
relate chiefly to injuries done immediately to the society itself. The prosecution of 
them, for this reason, will seldom fail to agitate the passions of the whole 
community, and to divide it into parties more or less friendly or inimical to the 
accused. In many cases it will connect itself with the pre-existing factions, and will 
enlist all their animosities, partialities, influence, and interest on one side or on the 
other; and in such cases there will always be the greatest danger that the decision 
will be regulated more by the comparative strength of parties, than by the real 
demonstrations of innocence or guilt. 

The delicacy and magnitude of a trust which so deeply concerns the political 
reputation and existence of every man engaged in the administration of public 
affairs, speak for themselves. The difficulty of placing it rightly, in a government 
resting entirely on the basis of periodical elections, will as readily be perceived, 



design of it, who can so properly be the inquisitors for the nation as the 
representatives of the nation themselves? It is not disputed that the power of 
originating the inquiry, or, in other words, of preferring the impeachment, ought to 
be lodged in the hands of one branch of the legislative body. Will not the reasons 
which indicate the propriety of this arrangement strongly plead for an admission of 
the other branch of that body to a share of the inquiry? The model from which the 
idea of this institution has been borrowed, pointed out that course to the 
convention. In Great Britain it is the province of the House of Commons to prefer 
the impeachment, and of the House of Lords to decide upon it. Several of the 
State constitutions have followed the example. As well the latter, as the former, 
seem to have regarded the practice of impeachments as a bridle in the hands of 
the legislative body upon the executive servants of the government. Is not this the 
true light in which it ought to be regarded? 

Where else than in the Senate could have been found a tribunal sufficiently 
dignified, or sufficiently independent? What other body would be likely to feel 
CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and 
uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the 
REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS? 



trial of impeachments, is equally dictated by the nature of the proceeding. This can 
never be tied down by such strict rules, either in the delineation of the offense by 
the prosecutors, or in the construction of it by the judges, as in common cases 
serve to limit the discretion of courts in favor of personal security. There will be no 
jury to stand between the judges who are to pronounce the sentence of the law, 
and the party who is to receive or suffer it. The awful discretion which a court of 
impeachments must necessarily have, to doom to honor or to infamy the most 
confidential and the most distinguished characters of the community, forbids the 
commitment of the trust to a small number of persons. 

These considerations seem alone sufficient to authorize a conclusion, that the 
Supreme Court would have been an improper substitute for the Senate, as a court 
of impeachments. There remains a further consideration, which will not a little 
strengthen this conclusion. It is this: The punishment which may be the 
consequence of conviction upon impeachment, is not to terminate the 
chastisement of the offender. After having been sentenced to a perpetual 
ostracism from the esteem and confidence, and honors and emoluments of his 
country, he will still be liable to prosecution and punishment in the ordinary course 
of law. Would it be proper that the persons who had disposed of his fame, and his 



more than dismission from a present, and disqualification for a future, office. It may 
be said, that the intervention of a jury, in the second instance, would obviate the 
danger. But juries are frequently influenced by the opinions of judges. They are 
sometimes induced to find special verdicts, which refer the main question to the 
decision of the court. Who would be willing to stake his life and his estate upon the 
verdict of a jury acting under the auspices of judges who had predetermined his 
guilt? 

Would it have been an improvement of the plan, to have united the Supreme Court 
with the Senate, in the formation of the court of impeachments? This union would 
certainly have been attended with several advantages; but would they not have 
been overbalanced by the signal disadvantage, already stated, arising from the 
agency of the same judges in the double prosecution to which the offender would 
be liable? To a certain extent, the benefits of that union will be obtained from 
making the chief justice of the Supreme Court the president of the court of 
impeachments, as is proposed to be done in the plan of the convention; while the 
inconveniences of an entire incorporation of the former into the latter will be 
substantially avoided. This was perhaps the prudent mean. I forbear to remark 
upon the additional pretext for clamor against the judiciary, which so considerable 



pci 1 1 icii ici 11 umucrio, oiciuui iciiy ai li ic acai ui yuvci i n i ici il, a\ iu ui i/uuioc ciiuucu lu 

fixed and regular stipends, or of certain officers of the State governments to be 
called upon whenever an impeachment was actually depending. It will not be easy 
to imagine any third mode materially different, which could rationally be proposed. 
As the court, for reasons already given, ought to be numerous, the first scheme will 
be reprobated by every man who can compare the extent of the public wants with 
the means of supplying them. The second will be espoused with caution by those 
who will seriously consider the difficulty of collecting men dispersed over the whole 
Union; the injury to the innocent, from the procrastinated determination of the 
charges which might be brought against them; the advantage to the guilty, from the 
opportunities which delay would afford to intrigue and corruption; and in some 
cases the detriment to the State, from the prolonged inaction of men whose firm 
and faithful execution of their duty might have exposed them to the persecution of 
an intemperate or designing majority in the House of Representatives. Though this 
latter supposition may seem harsh, and might not be likely often to be verified, yet 
it ought not to be forgotten that the demon of faction will, at certain seasons, 
extend his sceptre over all numerous bodies of men. 

But though one or the other of the substitutes which have been examined, or some 
other that might be devised, should be thought preferable to the plan in this 



PUBLIUS 



FEDERALIST No. 66. Objections to the Power of 
the Senate To Set as a Court for Impeachments 

Further Considered. 

From The Independent Journal. Saturday, March 8, 1788. 

HAMILTON 
To the People of the State of New York: 



uaoco, iiul ui ny |jiu|jci uui ncucooaiy lu u ic iiiulucu ucicidc ui uic acvciai 

members of the government against each other. An absolute or qualified negative 
in the executive upon the acts of the legislative body, is admitted, by the ablest 
adepts in political science, to be an indispensable barrier against the 
encroachments of the latter upon the former. And it may, perhaps, with no less 
reason be contended, that the powers relating to impeachments are, as before 
intimated, an essential check in the hands of that body upon the encroachments of 
the executive. The division of them between the two branches of the legislature, 
assigning to one the right of accusing, to the other the right of judging, avoids the 
inconvenience of making the same persons both accusers and judges; and 
guards against the danger of persecution, from the prevalency of a factious spirit 
in either of those branches. As the concurrence of two thirds of the Senate will be 
requisite to a condemnation, the security to innocence, from this additional 
circumstance, will be as complete as itself can desire. 

It is curious to observe, with what vehemence this part of the plan is assailed, on 
the principle here taken notice of, by men who profess to admire, without 
exception, the constitution of this State; while that constitution makes the Senate, 
together with the chancellor and judges of the Supreme Court, not only a court of 
impeachments, but the highest judicatory in the State, in all causes, civil and 



appuii in i ici il lu uiiiuco. ii, oay u ic uujcuiuio, iu u icac [jiciuyauvco 10 auucu u iai ui 

deciding in all cases of impeachment, it will give a decided predominancy to 
senatorial influence. To an objection so little precise in itself, it is not easy to find a 
very precise answer. Where is the measure or criterion to which we can appeal, 
for determining what will give the Senate too much, too little, or barely the proper 
degree of influence? Will it not be more safe, as well as more simple, to dismiss 
such vague and uncertain calculations, to examine each power by itself, and to 
decide, on general principles, where it may be deposited with most advantage 
and least inconvenience? 

If we take this course, it will lead to a more intelligible, if not to a more certain 
result. The disposition of the power of making treaties, which has obtained in the 
plan of the convention, will, then, if I mistake not, appear to be fully justified by the 
considerations stated in a former number, and by others which will occur under the 
next head of our inquiries. The expediency of the junction of the Senate with the 
Executive, in the power of appointing to offices, will, I trust, be placed in a light not 
less satisfactory, in the disquisitions under the same head. And I flatter myself the 
observations in my last paper must have gone no inconsiderable way towards 
proving that it was not easy, if practicable, to find a more fit receptacle for the 
power of determining impeachments, than that which has been chosen. If this be 



has provided in its favor several important counterpoises to the additional 
authorities to be conferred upon the Senate. The exclusive privilege of originating 
money bills will belong to the House of Representatives. The same house will 
possess the sole right of instituting impeachments: is not this a complete 
counterbalance to that of determining them? The same house will be the umpire in 
all elections of the President, which do not unite the suffrages of a majority of the 
whole number of electors; a case which it cannot be doubted will sometimes, if not 
frequently, happen. The constant possibility of the thing must be a fruitful source of 
influence to that body. The more it is contemplated, the more important will appear 
this ultimate though contingent power, of deciding the competitions of the most 
illustrious citizens of the Union, for the first office in it. It would not perhaps be rash 
to predict, that as a mean of influence it will be found to outweigh all the peculiar 
attributes of the Senate. 

A THIRD objection to the Senate as a court of impeachments, is drawn from the 
agency they are to have in the appointments to office. It is imagined that they 
would be too indulgent judges of the conduct of men, in whose official creation they 
had participated. The principle of this objection would condemn a practice, which 
is to be seen in all the State governments, if not in all the governments with which 



destroy the supposition that the Senate, who will merely sanction the choice of the 
Executive, should feel a bias, towards the objects of that choice, strong enough to 
blind them to the evidences of guilt so extraordinary, as to have induced the 
representatives of the nation to become its accusers. 

If any further arguments were necessary to evince the improbability of such a bias, 
it might be found in the nature of the agency of the Senate in the business of 
appointments. It will be the office of the President to NOMINATE, and, with the 
advice and consent of the Senate, to APPOINT. There will, of course, be no 
exertion of CHOICE on the part of the Senate. They may defeat one choice of the 
Executive, and oblige him to make another; but they cannot themselves 
CHOOSEA — they can only ratify or reject the choice of the President. They might 
even entertain a preference to some other person, at the very moment they were 
assenting to the one proposed, because there might be no positive ground of 
opposition to him; and they could not be sure, if they withheld their assent, that the 
subsequent nomination would fall upon their own favorite, or upon any other person 
in their estimation more meritorious than the one rejected. Thus it could hardly 
happen, that the majority of the Senate would feel any other complacency towards 
the object of an appointment than such as the appearances of merit might inspire, 



of reason than any other which has appeared against this part of the plan; and yet I 
am deceived if it does not rest upon an erroneous foundation. 

The security essentially intended by the Constitution against corruption and 
treachery in the formation of treaties, is to be sought for in the numbers and 
characters of those who are to make them. The JOINT AGENCY of the Chief 
Magistrate of the Union, and of two thirds of the members of a body selected by 
the collective wisdom of the legislatures of the several States, is designed to be 
the pledge for the fidelity of the national councils in this particular. The convention 
might with propriety have meditated the punishment of the Executive, for a 
deviation from the instructions of the Senate, or a want of integrity in the conduct of 
the negotiations committed to him; they might also have had in view the 
punishment of a few leading individuals in the Senate, who should have prostituted 
their influence in that body as the mercenary instruments of foreign corruption: but 
they could not, with more or with equal propriety, have contemplated the 
impeachment and punishment of two thirds of the Senate, consenting to an 
improper treaty, than of a majority of that or of the other branch of the national 
legislature, consenting to a pernicious or unconstitutional lawA — a principle which, 
I believe, has never been admitted into any government. How, in fact, could a 



any interest opposite to that of the public good. 

So far as might concern the misbehavior of the Executive in perverting the 
instructions or contravening the views of the Senate, we need not be apprehensive 
of the want of a disposition in that body to punish the abuse of their confidence or 
to vindicate their own authority. We may thus far count upon their pride, if not upon 
their virtue. And so far even as might concern the corruption of leading members, 
by whose arts and influence the majority may have been inveigled into measures 
odious to the community, if the proofs of that corruption should be satisfactory, the 
usual propensity of human nature will warrant us in concluding that there would be 
commonly no defect of inclination in the body to divert the public resentment from 
themselves by a ready sacrifice of the authors of their mismanagement and 
disgrace. 

PUBLIUS 

1. In that of New Jersey, also, the final judiciary authority is in a branch of the 
legislature. In New Hampshire, Massachusetts, Pennsylvania, and South Carolina, 
one branch of the legislature is the court for the trial of impeachments. 



To the People of the State of New York: 

THE constitution of the executive department of the proposed government, claims 
next our attention. 

There is hardly any part of the system which could have been attended with greater 
difficulty in the arrangement of it than this; and there is, perhaps, none which has 
been inveighed against with less candor or criticised with less judgment. 

Here the writers against the Constitution seem to have taken pains to signalize 
their talent of misrepresentation. Calculating upon the aversion of the people to 
monarchy, they have endeavored to enlist all their jealousies and apprehensions in 
opposition to the intended President of the United States; not merely as the 
embryo, but as the full-grown progeny, of that detested parent. To establish the 
pretended affinity, they have not scrupled to draw resources even from the regions 
of fiction. The authorities of a magistrate, in few instances greater, in some 
instances less, than those of a governor of New York, have been magnified into 
more than royal prerogatives. He has been decorated with attributes superior in 
dignity and splendor to those of a king of Great Britain. He has been shown to us 



ci|j|jcciicu iuc, ao lu uiiinaoi\ u ic uioii iyci iuny cu iu cApuac u ic icuiauy ui u ic 

counterfeit resemblances which have been so insidiously, as well as industriously, 
propagated. 

In the execution of this task, there is no man who would not find it an arduous effort 
either to behold with moderation, or to treat with seriousness, the devices, not less 
weak than wicked, which have been contrived to pervert the public opinion in 
relation to the subject. They so far exceed the usual though unjustifiable licenses of 
party artifice, that even in a disposition the most candid and tolerant, they must 
force the sentiments which favor an indulgent construction of the conduct of 
political adversaries to give place to a voluntary and unreserved indignation. It is 
impossible not to bestow the imputation of deliberate imposture and deception 
upon the gross pretense of a similitude between a king of Great Britain and a 
magistrate of the character marked out for that of the President of the United 
States. It is still more impossible to withhold that imputation from the rash and 
barefaced expedients which have been employed to give success to the 
attempted imposition. 

In one instance, which I cite as a sample of the general spirit, the temerity has 
proceeded so far as to ascribe to the President of the United States a power 



President of the United States "to nominate, and by and with the advice and 
consent of the Senate, to appoint ambassadors, other public ministers and 
consuls, judges of the Supreme Court, and all other OFFICERS of United States 
whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, 
and WHICH SHALL BE ESTABLISHED BYLAW." Immediately after this clause 
follows another in these words: "The President shall have power to fill up all 
VACANCIES that may happen DURING THE RECESS OF THE SENATE, by 
granting commissions which shall EXPIRE AT THE END OF THEIR NEXT 
SESSION." It is from this last provision that the pretended power of the President 
to fill vacancies in the Senate has been deduced. A slight attention to the 
connection of the clauses, and to the obvious meaning of the terms, will satisfy us 
that the deduction is not even colorable. 

The first of these two clauses, it is clear, only provides a mode for appointing such 
officers, "whose appointments are NOT OTHERWISE PROVIDED FOR in the 
Constitution, and which SHALL BE ESTABLISHED BYLAW"; of course it cannot 
extend to the appointments of senators, whose appointments are OTHERWISE 
PROVIDED FOR in the Constitution^), and who are ESTABLISHED BYTHE 
CONSTITUTION, and will not require a future establishment by law. This position 



iui li ic cippuii ili i ici il ui uiiiucio cu iu ao vo.ucuil.ico iinyin i icippci i iim i ni_ir\ 

RECESS, which it might be necessary for the public service to fill without delay, 
the succeeding clause is evidently intended to authorize the President, SINGLY, to 
make temporary appointments "during the recess of the Senate, by granting 
commissions which shall expire at the end of their next session." Second. If this 
clause is to be considered as supplementary to the one which precedes, the 
VACANCIES of which it speaks must be construed to relate to the "officers" 
described in the preceding one; and this, we have seen, excludes from its 
description the members of the Senate. Third. The time within which the power is 
to operate, "during the recess of the Senate," and the duration of the 
appointments, "to the end of the next session" of that body, conspire to elucidate 
the sense of the provision, which, if it had been intended to comprehend senators, 
would naturally have referred the temporary power of filling vacancies to the recess 
of the State legislatures, who are to make the permanent appointments, and not to 
the recess of the national Senate, who are to have no concern in those 
appointments; and would have extended the duration in office of the temporary 
senators to the next session of the legislature of the State, in whose representation 
the vacancies had happened, instead of making it to expire at the end of the 
ensuing session of the national Senate. The circumstances of the body authorized 



otherwise, DURING THE RECESS OF THE LEGISLATURE OF ANY STATE, the 
Executive THEREOF may make temporary appointments until the NEXT 
MEETING OF THE LEGISLATURE, which shall then fill such vacancies." Here is 
an express power given, in clear and unambiguous terms, to the State Executives, 
to fill casual vacancies in the Senate, by temporary appointments; which not only 
invalidates the supposition, that the clause before considered could have been 
intended to confer that power upon the President of the United States, but proves 
that this supposition, destitute as it is even of the merit of plausibility, must have 
originated in an intention to deceive the people, too palpable to be obscured by 
sophistry, too atrocious to be palliated by hypocrisy. 

I have taken the pains to select this instance of misrepresentation, and to place it 
in a clear and strong light, as an unequivocal proof of the unwarrantable arts which 
are practiced to prevent a fair and impartial judgment of the real merits of the 
Constitution submitted to the consideration of the people. Nor have I scrupled, in 
so flagrant a case, to allow myself a severity of animadversion little congenial with 
the general spirit of these papers. I hesitate not to submit it to the decision of any 
candid and honest adversary of the proposed government, whether language can 
furnish epithets of too much asperity, for so shameless and so prostitute an 



FEDERALIST No. 68. The Mode of Electing the 

President 

From The Independent Journal. Wednesday, March 12, 1788. 

HAMILTON 

To the People of the State of New York: 

THE mode of appointment of the Chief Magistrate of the United States is almost 
the only part of the system, of any consequence, which has escaped without 
severe censure, or which has received the slightest mark of approbation from its 
opponents. The most plausible of these, who has appeared in print, has even 
deigned to admit that the election of the President is pretty well guarded. (1) I 
venture somewhat further, and hesitate not to affirm, that if the manner of it be not 
perfect, it is at least excellent. It unites in an eminent degree all the advantages, 



number of persons, selected by their fellow-citizens from the general mass, will be 
most likely to possess the information and discernment requisite to such 
complicated investigations. 

It was also peculiarly desirable to afford as little opportunity as possible to tumult 
and disorder. This evil was not least to be dreaded in the election of a magistrate, 
who was to have so important an agency in the administration of the government 
as the President of the United States. But the precautions which have been so 
happily concerted in the system under consideration, promise an effectual security 
against this mischief. The choice of SEVERAL, to form an intermediate body of 
electors, will be much less apt to convulse the community with any extraordinary or 
violent movements, than the choice of ONE who was himself to be the final object 
of the public wishes. And as the electors, chosen in each State, are to assemble 
and vote in the State in which they are chosen, this detached and divided situation 
will expose them much less to heats and ferments, which might be communicated 
from them to the people, than if they were all to be convened atone time, in one 
place. 

Nothing was more to be desired than that every practicable obstacle should be 



they have excluded from eligibility to this trust, all those who from situation might 
be suspected of too great devotion to the President in office. No senator, 
representative, or other person holding a place of trust or profit under the United 
States, can be of the numbers of the electors. Thus without corrupting the body of 
the people, the immediate agents in the election will at least enter upon the task 
free from any sinister bias. Their transient existence, and their detached situation, 
already taken notice of, afford a satisfactory prospect of their continuing so, to the 
conclusion of it. The business of corruption, when it is to embrace so considerable 
a number of men, requires time as well as means. Nor would it be found easy 
suddenly to embark them, dispersed as they would be over thirteen States, in any 
combinations founded upon motives, which though they could not properly be 
denominated corrupt, might yet be of a nature to mislead them from their duty. 

Another and no less important desideratum was, that the Executive should be 
independent for his continuance in office on all but the people themselves. He 
might otherwise be tempted to sacrifice his duty to his complaisance for those 
whose favor was necessary to the duration of his official consequence. This 
advantage will also be secured, by making his re-election to depend on a special 
body of representatives, deputed by the society for the single purpose of making 



nuuac ui rs.c|ji coci nauvca 01 lan ocicui uul ui li ic ucu luiuaico vvi iu 01 icui i lave u ic n vc 

highest number of votes, the man who in their opinion may be best qualified for the 
office. 

The process of election affords a moral certainty, that the office of President will 
never fall to the lot of any man who is not in an eminent degree endowed with the 
requisite qualifications. Talents for low intrigue, and the little arts of popularity, may 
alone suffice to elevate a man to the first honors in a single State; but it will require 
other talents, and a different kind of merit, to establish him in the esteem and 
confidence of the whole Union, or of so considerable a portion of it as would be 
necessary to make him a successful candidate for the distinguished office of 
President of the United States. It will not be too strong to say, that there will be a 
constant probability of seeing the station filled by characters pre-eminent for ability 
and virtue. And this will be thought no inconsiderable recommendation of the 
Constitution, by those who are able to estimate the share which the executive in 
every government must necessarily have in its good or ill administration. Though 
we cannot acquiesce in the political heresy of the poet who says: 

"For forms of government let fools contestA — That which is best administered is 
best, "A — yet we may safely pronounce, that the true test of a good government is 



should have only a casting vote. And to take the senator of any State from his seat 
as senator, to place him in that of President of the Senate, would be to exchange, 
in regard to the State from which he came, a constant for a contingent vote. The 
other consideration is, that as the Vice-President may occasionally become a 
substitute for the President, in the supreme executive magistracy, all the reasons 
which recommend the mode of election prescribed for the one, apply with great if 
not with equal force to the manner of appointing the other. It is remarkable that in 
this, as in most other instances, the objection which is made would lie against the 
constitution of this State. We have a Lieutenant-Governor, chosen by the people at 
large, who presides in the Senate, and is the constitutional substitute for the 
Governor, in casualties similar to those which would authorize the Vice-President 
to exercise the authorities and discharge the duties of the President. 

PUBLIUS 

1. Vide federal farmer. 

El. Some editions substitute "desired" for "wished for". 



HAMILTON 

To the People of the State of New York: 

I PROCEED now to trace the real characters of the proposed Executive, as they 
are marked out in the plan of the convention. This will serve to place in a strong 
light the unfairness of the representations which have been made in regard to it. 

The first thing which strikes our attention is, that the executive authority, with few 
exceptions, is to be vested in a single magistrate. This will scarcely, however, be 
considered as a point upon which any comparison can be grounded; for if, in this 
particular, there be a resemblance to the king of Great Britain, there is not less a 
resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven 
Mountains, or to the governor of New York. 

That magistrate is to be elected for four years; and is to be re-eligible as often as 
the people of the United States shall think him worthy of their confidence. In these 
circumstances there is a total dissimilitude between him and a king of Great 
Britain, who is an hereditary monarch, possessing the crown as a patrimony 
descendible to his heirs forever; but there is a close analogy between him and a 



|jui ii 01 ii i ici il 111 u ic uiuii icii y Luuiac ui law. i i ic jjcrioui iui u ic i\ii ly ui oicai di ilcui i 10 

sacred and inviolable; there is no constitutional tribunal to which he is amenable; 
no punishment to which he can be subjected without involving the crisis of a 
national revolution. In this delicate and important circumstance of personal 
responsibility, the President of Confederated America would stand upon no better 
ground than a governor of New York, and upon worse ground than the governors of 
Maryland and Delaware. 

The President of the United States is to have power to return a bill, which shall 
have passed the two branches of the legislature, for reconsideration; and the bill 
so returned is to become a law, if, upon that reconsideration, it be approved by 
two thirds of both houses. The king of Great Britain, on his part, has an absolute 
negative upon the acts of the two houses of Parliament. The disuse of that power 
for a considerable time past does not affect the reality of its existence; and is to be 
ascribed wholly to the crown's having found the means of substituting influence to 
authority, or the art of gaining a majority in one or the other of the two houses, to 
the necessity of exerting a prerogative which could seldom be exerted without 
hazarding some degree of national agitation. The qualified negative of the 
President differs widely from this absolute negative of the British sovereign; and 
tallies exactly with the revisionary authority of the council of revision of this State, of 



icuui i ii i ici iu lu u ic uuiDiuciauuii ui wuiiyicoo dUL.ii incaduicd ao i ic csi icui juuyc 

necessary and expedient; to convene, on extraordinary occasions, both houses of 
the legislature, or either of them, and, in case of disagreement between them with 
respect to the time of adjournment, to adjourn them to such time as he shall think 
proper; to take care that the laws be faithfully executed; and to commission all 
officers of the United States." In most of these particulars, the power of the 
President will resemble equally that of the king of Great Britain and of the governor 
of New York. The most material points of difference are these:A — First. The 
President will have only the occasional command of such part of the militia of the 
nation as by legislative provision may be called into the actual service of the 
Union. The king of Great Britain and the governor of New York have at all times the 
entire command of all the militia within their several jurisdictions. In this article, 
therefore, the power of the President would be inferior to that of either the monarch 
or the governor. Second. The President is to be commander-in-chief of the army 
and navy of the United States. In this respect his authority would be nominally the 
same with that of the king of Great Britain, but in substance much inferior to it. It 
would amount to nothing more than the supreme command and direction of the 
military and naval forces, as first General and admiral of the Confederacy; while 
that of the British king extends to the declaring of war and to the raising and 



governor, in this article, on a calculation of political consequences, greater than 
that of the President? All conspiracies and plots against the government, which 
have not been matured into actual treason, maybe screened from punishment of 
every kind, by the interposition of the prerogative of pardoning. If a governor of 
New York, therefore, should be at the head of any such conspiracy, until the design 
had been ripened into actual hostility he could insure his accomplices and 
adherents an entire impunity. A President of the Union, on the other hand, though 
he may even pardon treason, when prosecuted in the ordinary course of law, could 
shelter no offender, in any degree, from the effects of impeachment and 
conviction. Would not the prospect of a total indemnity for all the preliminary steps 
be a greater temptation to undertake and persevere in an enterprise against the 
public liberty, than the mere prospect of an exemption from death and 
confiscation, if the final execution of the design, upon an actual appeal to arms, 
should miscarry? Would this last expectation have any influence at all, when the 
probability was computed, that the person who was to afford that exemption might 
himself be involved in the consequences of the measure, and might be 
incapacitated by his agency in it from affording the desired impunity? The better to 
judge of this matter, it will be necessary to recollect, that, by the proposed 
Constitution, the offense of treason is limited "to levying war upon the United 



ucu loauiiui 10. nc ucu i ui 1110 uvvi i auuuiu 1 1 iai\c ucauco ui |jcauc, uui i n i icioc, 

alliance, and of every other description. It has been insinuated, that his authority in 
this respect is not conclusive, and that his conventions with foreign powers are 
subject to the revision, and stand in need of the ratification, of Parliament. But I 
believe this doctrine was never heard of, until it was broached upon the present 
occasion. Every jurist(2) of that kingdom, and every other man acquainted with its 
Constitution, knows, as an established fact, that the prerogative of making treaties 
exists in the crown in its utmost plentitude; and that the compacts entered into by 
the royal authority have the most complete legal validity and perfection, 
independent of any other sanction. The Parliament, it is true, is sometimes seen 
employing itself in altering the existing laws to conform them to the stipulations in a 
new treaty; and this may have possibly given birth to the imagination, that its co- 
operation was necessary to the obligatory efficacy of the treaty. But this 
parliamentary interposition proceeds from a different cause: from the necessity of 
adjusting a most artificial and intricate system of revenue and commercial laws, to 
the changes made in them by the operation of the treaty; and of adapting new 
provisions and precautions to the new state of things, to keep the machine from 
running into disorder. In this respect, therefore, there is no comparison between 
the intended power of the President and the actual power of the British sovereign. 



111 li ic aui i mi iiou cuiui i ui li ic yuvcn n i ici il, ch\ iu il vvao icu 1 1 iui c lui ivci iici il li icu il 

should be arranged in this manner, than that there should be a necessity of 
convening the legislature, or one of its branches, upon every arrival of a foreign 
minister, though it were merely to take the place of a departed predecessor. 

The President is to nominate, and, with the advice and consent of the Senate, to 
appoint ambassadors and other public ministers, judges of the Supreme Court, 
and in general all officers of the United States established by law, and whose 
appointments are not otherwise provided for by the Constitution. The king of Great 
Britain is emphatically and truly styled the fountain of honor. He not only appoints to 
all offices, but can create offices. He can confer titles of nobility at pleasure; and 
has the disposal of an immense number of church preferments. There is evidently 
a great inferiority in the power of the President, in this particular, to that of the 
British king; nor is it equal to that of the governor of New York, if we are to interpret 
the meaning of the constitution of the State by the practice which has obtained 
under it. The power of appointment is with us lodged in a council, composed of the 
governor and four members of the Senate, chosen by the Assembly. The governor 
claims, and has frequently exercised, the right of nomination, and is entitled to a 
casting vote in the appointment. If he really has the right of nominating, his authority 
is in this respect equal to that of the President, and exceeds it in the article of the 



be greatly superior to that of the Chief Magistrate of the Union. 

Hence it appears that, except as to the concurrent authority of the President in the 
article of treaties, it would be difficult to determine whether that magistrate would, 
in the aggregate, possess more or less power than the Governor of New York. 
And it appears yet more unequivocally, that there is no pretense for the parallel 
which has been attempted between him and the king of Great Britain. But to 
render the contrast in this respect still more striking, it may be of use to throw the 
principal circumstances of dissimilitude into a closer group. 

The President of the United States would be an officer elected by the people for 
four years; the king of Great Britain is a perpetual and hereditary prince. The one 
would be amenable to personal punishment and disgrace; the person of the other 
is sacred and inviolable. The one would have a qualified negative upon the acts of 
the legislative body; the other has an absolute negative. The one would have a 
right to command the military and naval forces of the nation; the other, in addition 
to this right, possesses that of declaring war, and of raising and regulating fleets 
and armies by his own authority. The one would have a concurrent power with a 
branch of the legislature in the formation of treaties; the other is the sole 
possessor of the power of making treaties. The one would have a like concurrent 



government, the whole power of which would be in the hands of the elective and 
periodical servants of the people, is an aristocracy, a monarchy, and a despotism. 

PUBLIUS 

1. A writer in a Pennsylvania paper, under the signature of TAMONY, has asserted 
that the king of Great Britain owes his prerogative as commander-in-chief to an 
annual mutiny bill. The truth is, on the contrary, that his prerogative, in this respect, 
is immemorial, and was only disputed, "contrary to all reason and precedent," as 
Blackstone vol. i., page 262, expresses it, by the Long Parliament of Charles I. but 
by the statute the 13th of Charles II., chap. 6, it was declared to be in the king 
alone, for that the sole supreme government and command of the militia within his 
Majesty's realms and dominions, and of all forces by sea and land, and of all forts 
and places of strength, EVER WAS AND IS the undoubted right of his Majesty and 
his royal predecessors, kings and queens of England, and that both or either 
house of Parliament cannot nor ought to pretend to the same. 

2. Vide Blackstone's Commentaries, Vol I., p. 257. 



FEDERALIST No. 70. The Executive Department 

Further Considered 

From The Independent Journal. Saturday, March 15, 1788. 

HAMILTON 

To the People of the State of New York: 

THERE is an idea, which is not without its advocates, that a vigorous Executive is 
inconsistent with the genius of republican government. The enlightened well- 
wishers to this species of government must at least hope that the supposition is 
destitute of foundation; since they can never admit its truth, without at the same 
time admitting the condemnation of their own principles. Energy in the Executive is 
a leading character in the definition of good government. It is essential to the 
protection of the community against foreign attacks; it is not less essential to the 
steady administration of the laws; to the protection of property against those 



AA ICCUIC 1-ACl/UUVC llll|JIICd CL ICCUIC CACl/UUUII Ul LI IC LJ U VCI I II I ICI IL. M ICCUIC 

execution is but another phrase for a bad execution; and a government ill 
executed, whatever it may be in theory, must be, in practice, a bad government. 

Taking it for granted, therefore, that all men of sense will agree in the necessity of 
an energetic Executive, it will only remain to inquire, what are the ingredients which 
constitute this energy? How far can they be combined with those other ingredients 
which constitute safety in the republican sense? And how far does this 
combination characterize the plan which has been reported by the convention? 

The ingredients which constitute energy in the Executive are, first, unity; secondly, 
duration; thirdly, an adequate provision for its support; fourthly, competent powers. 

The ingredients which constitute safety in the republican sense are, first, a due 
dependence on the people, secondly, a due responsibility. 

Those politicians and statesmen who have been the most celebrated for the 
soundness of their principles and for the justice of their views, have declared in 
favor of a single Executive and a numerous legislature. They have with great 
propriety, considered energy as the most necessary qualification of the former, 
and have regarded this as most applicable to power in a single hand, while they 



capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as 
an example; of the last, we shall find examples in the constitutions of several of the 
States. New York and New Jersey, if I recollect right, are the only States which 
have intrusted the executive authority wholly to single men.(l) Both these methods 
of destroying the unity of the Executive have their partisans; but the votaries of an 
executive council are the most numerous. They are both liable, if not to equal, to 
similar objections, and may in most lights be examined in conjunction. 

The experience of other nations will afford little instruction on this head. As far, 
however, as it teaches any thing, it teaches us not to be enamoured of plurality in 
the Executive. We have seen that the Achaeans, on an experiment of two 
Praetors, were induced to abolish one. The Roman history records many 
instances of mischiefs to the republic from the dissensions between the Consuls, 
and between the military Tribunes, who were at times substituted for the Consuls. 
But it gives us no specimens of any peculiar advantages derived to the state from 
the circumstance of the plurality of those magistrates. That the dissensions 
between them were not more frequent or more fatal, is a matter of astonishment, 
until we advert to the singular position in which the republic was almost continually 
placed, and to the prudent policy pointed out by the circumstances of the state, 



the peace of the republic. 

But quitting the dim light of historical research, attaching ourselves purely to the 
dictates of reason and good sense, we shall discover much greater cause to 
reject than to approve the idea of plurality in the Executive, under any modification 
whatever. 

Wherever two or more persons are engaged in any common enterprise or pursuit, 
there is always danger of difference of opinion. If it be a public trust or office, in 
which they are clothed with equal dignity and authority, there is peculiar danger of 
personal emulation and even animosity. From either, and especially from all these 
causes, the most bitter dissensions are apt to spring. Whenever these happen, 
they lessen the respectability, weaken the authority, and distract the plans and 
operation of those whom they divide. If they should unfortunately assail the 
supreme executive magistracy of a country, consisting of a plurality of persons, 
they might impede or frustrate the most important measures of the government, in 
the most critical emergencies of the state. And what is still worse, they might split 
the community into the most violent and irreconcilable factions, adhering differently 
to the different individuals who composed the magistracy. 



consequences, afford melancholy proofs of the effects of this despicable frailty, or 
rather detestable vice, in the human character. 

Upon the principles of a free government, inconveniences from the source just 
mentioned must necessarily be submitted to in the formation of the legislature; but 
it is unnecessary, and therefore unwise, to introduce them into the constitution of 
the Executive. It is here too that they may be most pernicious. In the legislature, 
promptitude of decision is oftener an evil than a benefit. The differences of 
opinion, and the jarrings of parties in that department of the government, though 
they may sometimes obstruct salutary plans, yet often promote deliberation and 
circumspection, and serve to check excesses in the majority. When a resolution 
too is once taken, the opposition must be at an end. That resolution is a law, and 
resistance to it punishable. But no favorable circumstances palliate or atone for 
the disadvantages of dissension in the executive department. Here, they are pure 
and unmixed. There is no point at which they cease to operate. They serve to 
embarrass and weaken the execution of the plan or measure to which they relate, 
from the first step to the final conclusion of it. They constantly counteract those 
qualities in the Executive which are the most necessary ingredients in its 
compositionA — vigor and expedition, and this without any counterbalancing good. 



CACILI3C Ul LI IC CACUUUVC ClUlllUlliy VVILII O. 0|JIIIL Ul MClUILUCll ICCUICI IC33 CX\ IU 

dilatoriness. 

(But one of the weightiest objections to a plurality in the Executive, and which lies 
as much against the last as the first plan, is, that it tends to conceal faults and 
destroy responsibility. Responsibility is of two kindsA — to censure and to 
punishment. The first is the more important of the two, especially in an elective 
office. Man, in public trust, will much oftener act in such a manner as to render him 
unworthy of being any longer trusted, than in such a manner as to make him 
obnoxious to legal punishment. But the multiplication of the Executive adds to the 
difficulty of detection in either case. It often becomes impossible, amidst mutual 
accusations, to determine on whom the blame or the punishment of a pernicious 
measure, or series of pernicious measures, ought really to fall. It is shifted from 
one to another with so much dexterity, and under such plausible appearances, that 
the public opinion is left in suspense about the real author. The circumstances 
which may have led to any national miscarriage or misfortune are sometimes so 
complicated that, where there are a number of actors who may have had different 
degrees and kinds of agency, though we may clearly see upon the whole that there 
has been mismanagement, yet it may be impracticable to pronounce to whose 
account the evil which may have been incurred is truly chargeable.)(El) 



measures, ought really to fall. It is shifted from one to another with so much 
dexterity, and under such plausible appearances, that the public opinion is left in 
suspense about the real author. The circumstances which may have led to any 
national miscarriage or misfortune are sometimes so complicated that, where 
there are a number of actors who may have had different degrees and kinds of 
agency, though we may clearly see upon the whole that there has been 
mismanagement, yet it may be impracticable to pronounce to whose account the 
evil which may have been incurred is truly chargeable.)(El) 

"I was overruled by my council. The council were so divided in their opinions that it 
was impossible to obtain any better resolution on the point." These and similar 
pretexts are constantly at hand, whether true or false. And who is there that will 
either take the trouble or incur the odium, of a strict scrutiny into the secret springs 
of the transaction? Should there be found a citizen zealous enough to undertake 
the unpromising task, if there happen to be collusion between the parties 
concerned, how easy it is to clothe the circumstances with so much ambiguity, as 
to render it uncertain what was the precise conduct of any of those parties? 

In the single instance in which the governor of this State is coupled with a councilA 



UCkJIIVC LI IC [JCUfJIC Ul LI IC LVVU LJICCLLCOL OCUUI I LI CO LI ICy Uai I liaVC IUI LI IC ICIILMIUI 

exercise of any delegated power, first, the restraints of public opinion, which lose 
their efficacy, as well on account of the division of the censure attendant on bad 
measures among a number, as on account of the uncertainty on whom it ought to 
fall; and, second, the opportunity of discovering with facility and clearness the 
misconduct of the persons they trust, in order either to their removal from office or 
to their actual punishment in cases which admit of it. 

In England, the king is a perpetual magistrate; and it is a maxim which has 
obtained for the sake of the public peace, that he is unaccountable for his 
administration, and his person sacred. Nothing, therefore, can be wiser in that 
kingdom, than to annex to the king a constitutional council, who may be 
responsible to the nation for the advice they give. Without this, there would be no 
responsibility whatever in the executive department an idea inadmissible in a free 
government. But even there the king is not bound by the resolutions of his council, 
though they are answerable for the advice they give. He is the absolute master of 
his own conduct in the exercise of his office, and may observe or disregard the 
counsel given to him at his sole discretion. 

But in a republic, where every magistrate ought to be personally responsible for 



u ic iiiciaiiii 01 iuuiu uc auiiiiucu lu uc a|j|jii uauic lu u ic uaac, i 01 iuuiu uuiilciiu uiai 

the advantage on that side would not counterbalance the numerous disadvantages 
on the opposite side. But I do not think the rule at all applicable to the executive 
power. I clearly concur in opinion, in this particular, with a writer whom the 
celebrated Junius pronounces to be "deep, solid, and ingenious," that "the 
executive power is more easily confined when it is ONE";(2) that it is far more safe 
there should be a single object for the jealousy and watchfulness of the people; 
and, in a word, that all multiplication of the Executive is rather dangerous than 
friendly to liberty. 

A little consideration will satisfy us, that the species of security sought for in the 
multiplication of the Executive, is unattainable. Numbers must be so great as to 
render combination difficult, or they are rather a source of danger than of security. 
The united credit and influence of several individuals must be more formidable to 
liberty, than the credit and influence of either of them separately. When power, 
therefore, is placed in the hands of so small a number of men, as to admit of their 
interests and views being easily combined in a common enterprise, by an artful 
leader, it becomes more liable to abuse, and more dangerous when abused, than 
if it be lodged in the hands of one man; who, from the very circumstance of his 
being alone, will be more narrowly watched and more readily suspected, and who 



I forbear to dwell upon the subject of expense; though it be evident that if the 
council should be numerous enough to answer the principal end aimed at by the 
institution, the salaries of the members, who must be drawn from their homes to 
reside at the seat of government, would form an item in the catalogue of public 
expenditures too serious to be incurred for an object of equivocal utility. I will only 
add that, prior to the appearance of the Constitution, I rarely met with an intelligent 
man from any of the States, who did not admit, as the result of experience, that the 
UNITY of the executive of this State was one of the best of the distinguishing 
features of our constitution. 

PUBLIUS 

1. New York has no council except for the single purpose of appointing to offices; 
New Jersey has a council whom the governor may consult. But I think, from the 
terms of the constitution, their resolutions do not bind him. 

2. De Lolme. 

3. Ten. 



i~ i win me imcvv iuiiv rauivci. i ucsuay, iviai un j.o, j. t oo. 

HAMILTON 

To the People of the State of New York: 

DURATION in office has been mentioned as the second requisite to the energy of 
the Executive authority. This has relation to two objects: to the personal firmness of 
the executive magistrate, in the employment of his constitutional powers; and to 
the stability of the system of administration which may have been adopted under 
his auspices. With regard to the first, it must be evident, that the longer the 
duration in office, the greater will be the probability of obtaining so important an 
advantage. It is a general principle of human nature, that a man will be interested 
in whatever he possesses, in proportion to the firmness or precariousness of the 
tenure by which he holds it; will be less attached to what he holds by a momentary 
or uncertain title, than to what he enjoys by a durable or certain title; and, of course, 
will be willing to risk more for the sake of the one, than for the sake of the other. 
This remark is not less applicable to a political privilege, or honor, or trust, than to 
any article of ordinary property. The inference from it is, that a man acting in the 



iiicic die ouiiic vvi iu vvuuiu uc iiiuinicru lu icycuu u ic acivnc |jiicuii.y ui u ic 

Executive to a prevailing current, either in the community or in the legislature, as its 
best recommendation. But such men entertain very crude notions, as well of the 
purposes for which government was instituted, as of the true means by which the 
public happiness may be promoted. The republican principle demands that the 
deliberate sense of the community should govern the conduct of those to whom 
they intrust the management of their affairs; but it does not require an unqualified 
complaisance to every sudden breeze of passion, or to every transient impulse 
which the people may receive from the arts of men, who flatter their prejudices to 
betray their interests. It is a just observation, that the people commonly INTEND 
the PUBLIC GOOD. This often applies to their very errors. But their good sense 
would despise the adulator who should pretend that they always REASON RIGHT 
about the MEANS of promoting it. They know from experience that they 
sometimes err; and the wonder is that they so seldom err as they do, beset, as 
they continually are, by the wiles of parasites and sycophants, by the snares of the 
ambitious, the avaricious, the desperate, by the artifices of men who possess their 
confidence more than they deserve it, and of those who seek to possess rather 
than to deserve it. When occasions present themselves, in which the interests of 
the people are at variance with their inclinations, it is the duty of the persons whom 



iicuucu. 111 ciliici ouppuouiui i, il io ucriicuiny uciiiauic u lai u ic i_acluu vc csi iuuiu uc 

in a situation to dare to act his own opinion with vigor and decision. 

The same rule which teaches the propriety of a partition between the various 
branches of power, teaches us likewise that this partition ought to be so contrived 
as to render the one independent of the other. To what purpose separate the 
executive or the judiciary from the legislative, if both the executive and the judiciary 
are so constituted as to be at the absolute devotion of the legislative? Such a 
separation must be merely nominal, and incapable of producing the ends for which 
it was established. It is one thing to be subordinate to the laws, and another to be 
dependent on the legislative body. The first comports with, the last violates, the 
fundamental principles of good government; and, whatever may be the forms of 
the Constitution, unites all power in the same hands. The tendency of the 
legislative authority to absorb every other, has been fully displayed and illustrated 
by examples in some preceding numbers. In governments purely republican, this 
tendency is almost irresistible. The representatives of the people, in a popular 
assembly, seem sometimes to fancy that they are the people themselves, and 
betray strong symptoms of impatience and disgust at the least sign of opposition 
from any other quarter; as if the exercise of its rights, by either the executive or 
judiciary, were a breach of their privilege and an outrage to their dignity. They often 



IICULCUU. aaiiuuici cuiovvci, pciiiap^ IIIUIC UUVIUUO, LMUUyil I lUL I I IUIC UUI IUIUOI VC, Will 

result from the consideration of the influence of the legislative body over the 
people; which might be employed to prevent the re-election of a man who, by an 
upright resistance to any sinister project of that body, should have made himself 
obnoxious to its resentment. 

It may be asked also, whether a duration of four years would answer the end 
proposed; and if it would not, whether a less period, which would at least be 
recommended by greater security against ambitious designs, would not, for that 
reason, be preferable to a longer period, which was, at the same time, too short 
for the purpose of inspiring the desired firmness and independence of the 
magistrate. 

It cannot be affirmed, that a duration of four years, or any other limited duration, 
would completely answer the end proposed; but it would contribute towards it in a 
degree which would have a material influence upon the spirit and character of the 
government. Between the commencement and termination of such a period, there 
would always be a considerable interval, in which the prospect of annihilation 
would be sufficiently remote, not to have an improper effect upon the conduct of a 
man indued with a tolerable portion of fortitude; and in which he might reasonably 



valuable ingredient in the composition; so, on the other, it is not enough to justify 
any alarm for the public liberty. If a British House of Commons, from the most 
feeble beginnings, FROM THE MERE POWER OF ASSENTING OR 
DISAGREEING TO THE IMPOSITION OF A NEW TAX, have, by rapid strides, 
reduced the prerogatives of the crown and the privileges of the nobility within the 
limits they conceived to be compatible with the principles of a free government, 
while they raised themselves to the rank and consequence of a coequal branch of 
the legislature; if they have been able, in one instance, to abolish both the royalty 
and the aristocracy, and to overturn all the ancient establishments, as well in the 
Church as State; if they have been able, on a recent occasion, to make the 
monarch tremble at the prospect of an innovation(l) attempted by them, what 
would be to be feared from an elective magistrate of four years' duration, with the 
confined authorities of a President of the United States? What, but that he might 
be unequal to the task which the Constitution assigns him? I shall only add, that if 
his duration be such as to leave a doubt of his firmness, that doubt is inconsistent 
with a jealousy of his encroachments. 

PUBLIUS 



Considered. 

From The Independent Journal. Wednesday, March 19, 1788. 

HAMILTON 

To the People of the State of New York: 

THE administration of government, in its largest sense, comprehends all the 
operations of the body politic, whether legislative, executive, or judiciary; but in its 
most usual, and perhaps its most precise signification, it is limited to executive 
details, and falls peculiarly within the province of the executive department. The 
actual conduct of foreign negotiations, the preparatory plans of finance, the 
application and disbursement of the public moneys in conformity to the general 
appropriations of the legislature, the arrangement of the army and navy, the 
directions of the operations of warA — these, and other matters of a like nature, 
constitute what seems to be most properly understood by the administration of 
government. The persons, therefore, to whose immediate management these 



will recommend himself to the favor of his constituents. These considerations, and 
the influence of personal confidences and attachments, would be likely to induce 
every new President to promote a change of men to fill the subordinate stations; 
and these causes together could not fail to occasion a disgraceful and ruinous 
mutability in the administration of the government. 

With a positive duration of considerable extent, I connect the circumstance of re- 
eligibility. The first is necessary to give to the officer himself the inclination and the 
resolution to act his part well, and to the community time and leisure to observe the 
tendency of his measures, and thence to form an experimental estimate of their 
merits. The last is necessary to enable the people, when they see reason to 
approve of his conduct, to continue him in his station, in order to prolong the utility 
of his talents and virtues, and to secure to the government the advantage of 
permanency in a wise system of administration. 

Nothing appears more plausible at first sight, nor more ill-founded upon close 
inspection, than a scheme which in relation to the present point has had some 
respectable advocatesA — I mean that of continuing the chief magistrate in office 
for a certain time, and then excluding him from it, either for a limited period or 
forever after. This exclusion, whether temporary or perpetual, would have nearly 



ui icu i ic, u ic i uiii iy jjaooiui iui u ic i iuuicoi 1 1 in iuo, vvi iiui i vvuuiu pi ui i i|jl a 1 1 lai i lu picu i 

and undertake extensive and arduous enterprises for the public benefit, requiring 
considerable time to mature and perfect them, if he could flatter himself with the 
prospect of being allowed to finish what he had begun, would, on the contrary, 
deter him from the undertaking, when he foresaw that he must quit the scene 
before he could accomplish the work, and must commit that, together with his own 
reputation, to hands which might be unequal or unfriendly to the task. The most to 
be expected from the generality of men, in such a situation, is the negative merit of 
not doing harm, instead of the positive merit of doing good. 

Another ill effect of the exclusion would be the temptation to sordid views, to 
peculation, and, in some instances, to usurpation. An avaricious man, who might 
happen to fill the office, looking forward to a time when he must at all events yield 
up the emoluments he enjoyed, would feel a propensity, not easy to be resisted by 
such a man, to make the best use of the opportunity he enjoyed while it lasted, and 
might not scruple to have recourse to the most corrupt expedients to make the 
harvest as abundant as it was transitory; though the same man, probably, with a 
different prospect before him, might content himself with the regular perquisites of 
his situation, and might even be unwilling to risk the consequences of an abuse of 
his opportunities. His avarice might be a guard upon his avarice. Add to this that 



cuici i ipm ly li ic pi uiui lycuiui i ui i no puvvci , cll cvciy jjcriouiiai iicuicuu, u lai i n lie i lau 

the probability of answering the same end by doing his duty. 

Would it promote the peace of the community, or the stability of the government to 
have half a dozen men who had had credit enough to be raised to the seat of the 
supreme magistracy, wandering among the people like discontented ghosts, and 
sighing for a place which they were destined never more to possess? 

A third ill effect of the exclusion would be, the depriving the community of the 
advantage of the experience gained by the chief magistrate in the exercise of his 
office. That experience is the parent of wisdom, is an adage the truth of which is 
recognized by the wisest as well as the simplest of mankind. What more desirable 
or more essential than this quality in the governors of nations? Where more 
desirable or more essential than in the first magistrate of a nation? Can it be wise 
to put this desirable and essential quality under the ban of the Constitution, and to 
declare that the moment it is acquired, its possessor shall be compelled to 
abandon the station in which it was acquired, and to which it is adapted? This, 
nevertheless, is the precise import of all those regulations which exclude men from 
serving their country, by the choice of their fellowcitizens, after they have by a 
course of service fitted themselves for doing it with a greater degree of utility. 



as it would substitute inexperience to experience, and would tend to unhinge and 
set afloat the already settled train of the administration. 

A fifth ill effect of the exclusion would be, that it would operate as a constitutional 
interdiction of stability in the administration. By necessitating a change of men, in 
the first office of the nation, it would necessitate a mutability of measures. It is not 
generally to be expected, that men will vary and measures remain uniform. The 
contrary is the usual course of things. And we need not be apprehensive that there 
will be too much stability, while there is even the option of changing; nor need we 
desire to prohibit the people from continuing their confidence where they think it 
may be safely placed, and where, by constancy on their part, they may obviate the 
fatal inconveniences of fluctuating councils and a variable policy. 

These are some of the disadvantages which would flow from the principle of 
exclusion. They apply most forcibly to the scheme of a perpetual exclusion; but 
when we consider that even a partial exclusion would always render the 
readmission of the person a remote and precarious object, the observations which 
have been made will apply nearly as fully to one case as to the other. 

What are the advantages promised to counterbalance these disadvantages? They 



aao lu u ic acuui iu ou|J|juocu auvaiiiaijc, liicic 10 ouii yicaici icaoun lu ciuciiaiii 

doubts concerning it. If the exclusion were to be perpetual, a man of irregular 
ambition, of whom alone there could be reason in any case to entertain 
apprehension, would, with infinite reluctance, yield to the necessity of taking his 
leave forever of a post in which his passion for power and pre-eminence had 
acquired the force of habit. And if he had been fortunate or adroit enough to 
conciliate the good-will of the people, he might induce them to consider as a very 
odious and unjustifiable restraint upon themselves, a provision which was 
calculated to debar them of the right of giving a fresh proof of their attachment to a 
favorite. There may be conceived circumstances in which this disgust of the 
people, seconding the thwarted ambition of such a favorite, might occasion 
greater danger to liberty, than could ever reasonably be dreaded from the 
possibility of a perpetuation in office, by the voluntary suffrages of the community, 
exercising a constitutional privilege. 

There is an excess of refinement in the idea of disabling the people to continue in 
office men who had entitled themselves, in their opinion, to approbation and 
confidence; the advantages of which are at best speculative and equivocal, and 
are overbalanced by disadvantages far more certain and decisive. 



HAMILTON 

To the People of the State of New York: 

THE third ingredient towards constituting the vigor of the executive authority, is an 
adequate provision for its support. It is evident that, without proper attention to this 
article, the separation of the executive from the legislative department would be 
merely nominal and nugatory. The legislature, with a discretionary power over the 
salary and emoluments of the Chief Magistrate, could render him as obsequious 
to their will as they might think proper to make him. They might, in most cases, 
either reduce him by famine, or tempt him by largesses, to surrender at discretion 
his judgment to their inclinations. These expressions, taken in all the latitude of the 
terms, would no doubt convey more than is intended. There are men who could 
neither be distressed nor won into a sacrifice of their duty; but this stern virtue is 
the growth of few soils; and in the main it will be found that a power over a man's 
support is a power over his will. If it were necessary to confirm so plain a truth by 
facts, examples would not be wanting, even in this country, of the intimidation or 



UC LI IC L.UI I IkJCI DailUI I IUI I IIO 3CI VIUC3 UUI II ILj LI IC LI I I IC IUI VVI IIL.I I I IC Ol IClll I IOVC UCCI I 

elected. This done, they will have no power to alter it, either by increase or 
diminution, till a new period of service by a new election commences. They can 
neither weaken his fortitude by operating on his necessities, nor corrupt his 
integrity by appealing to his avarice. Neither the Union, nor any of its members, will 
be at liberty to give, nor will he be at liberty to receive, any other emolument than 
that which may have been determined by the first act. He can, of course, have no 
pecuniary inducement to renounce or desert the independence intended for him by 
the Constitution. 

The last of the requisites to energy, which have been enumerated, are competent 
powers. Let us proceed to consider those which are proposed to be vested in the 
President of the United States. 

The first thing that offers itself to our observation, is the qualified negative of the 
President upon the acts or resolutions of the two houses of the legislature; or, in 
other words, his power of returning all bills with objections, to have the effect of 
preventing their becoming laws, unless they should afterwards be ratified by two 
thirds of each of the component members of the legislative body. 



the same hands. If even no propensity had ever discovered itself in the legislative 
body to invade the rights of the Executive, the rules of just reasoning and theoretic 
propriety would of themselves teach us, that the one ought not to be left to the 
mercy of the other, but ought to possess a constitutional and effectual power of 
self-defense. 

But the power in question has a further use. It not only serves as a shield to the 
Executive, but it furnishes an additional security against the enaction of improper 
laws. It establishes a salutary check upon the legislative body, calculated to guard 
the community against the effects of faction, precipitancy, or of any impulse 
unfriendly to the public good, which may happen to influence a majority of that 
body. 

The propriety of a negative has, upon some occasions, been combated by an 
observation, that it was not to be presumed a single man would possess more 
virtue and wisdom than a number of men; and that unless this presumption should 
be entertained, it would be improper to give the executive magistrate any species 
of control over the legislative body. 

But this observation, when examined, will appear rather specious than solid. The 



must be the danger of those errors which flow from want of due deliberation, or of 
those missteps which proceed from the contagion of some common passion or 
interest. It is far less probable, that culpable views of any kind should infect all the 
parts of the government at the same moment and in relation to the same object, 
than that they should by turns govern and mislead everyone of them. 

It may perhaps be said that the power of preventing bad laws includes that of 
preventing good ones; and may be used to the one purpose as well as to the 
other. But this objection will have little weight with those who can properly estimate 
the mischiefs of that inconstancy and mutability in the laws, which form the greatest 
blemish in the character and genius of our governments. They will consider every 
institution calculated to restrain the excess of law-making, and to keep things in 
the same state in which they happen to be at any given period, as much more 
likely to do good than harm; because it is favorable to greater stability in the 
system of legislation. The injury which may possibly be done by defeating a few 
good laws, will be amply compensated by the advantage of preventing a number 
of bad ones. 

Nor is this all. The superior weight and influence of the legislative body in a free 
government, and the hazard to the Executive in a trial of strength with that body, 



kingdom will accede to the justness of this remark. A very considerable period has 
elapsed since the negative of the crown has been exercised. 

If a magistrate so powerful and so well fortified as a British monarch, would have 
scruples about the exercise of the power under consideration, how much greater 
caution may be reasonably expected in a President of the United States, clothed 
for the short period of four years with the executive authority of a government 
wholly and purely republican? 

It is evident that there would be greater danger of his not using his power when 
necessary, than of his using it too often, or too much. An argument, indeed, 
against its expediency, has been drawn from this very source. It has been 
represented, on this account, as a power odious in appearance, useless in 
practice. But it will not follow, that because it might be rarely exercised, it would 
never be exercised. In the case for which it is chiefly designed, that of an 
immediate attack upon the constitutional rights of the Executive, or in a case in 
which the public good was evidently and palpably sacrificed, a man of tolerable 
firmness would avail himself of his constitutional means of defense, and would 
listen to the admonitions of duty and responsibility. In the former supposition, his 
fortitude would be stimulated by his immediate interest in the power of his office; in 



icciuny caciuiocu u icu i u ic uliici. /-\ 1 1 icu i vvi iu 1 1 ny i il uc cuicuu lu ucicaia law uy i no 

single VETO, might not scruple to return it for reconsideration; subject to being 
finally rejected only in the event of more than one third of each house concurring in 
the sufficiency of his objections. He would be encouraged by the reflection, that if 
his opposition should prevail, it would embark in it a very respectable proportion of 
the legislative body, whose influence would be united with his in supporting the 
propriety of his conduct in the public opinion. A direct and categorical negative 
has something in the appearance of it more harsh, and more apt to irritate, than 
the mere suggestion of argumentative objections to be approved or disapproved 
by those to whom they are addressed. In proportion as it would be less apt to 
offend, it would be more apt to be exercised; and for this very reason, it may in 
practice be found more effectual. It is to be hoped that it will not often happen that 
improper views will govern so large a proportion as two thirds of both branches of 
the legislature at the same time; and this, too, in spite of the counterposing weight 
of the Executive. It is at any rate far less probable that this should be the case, than 
that such views should taint the resolutions and conduct of a bare majority. A 
power of this nature in the Executive, will often have a silent and unperceived, 
though forcible, operation. When men, engaged in unjustifiable pursuits, are aware 
that obstructions may come from a quarter which they cannot control, they will often 



of that of Massachusetts. Two strong reasons may be imagined for this 
preference. One is that the judges, who are to be the interpreters of the law, might 
receive an improper bias, from having given a previous opinion in their revisionary 
capacities; the other is that by being often associated with the Executive, they 
might be induced to embark too far in the political views of that magistrate, and 
thus a dangerous combination might by degrees be cemented between the 
executive and judiciary departments. It is impossible to keep the judges too 
distinct from every other avocation than that of expounding the laws. It is peculiarly 
dangerous to place them in a situation to be either corrupted or influenced by the 
Executive. 

PUBLIUS 

1. Mr. Abraham Yates, a warm opponent of the plan of the convention is of this 
number. 



To the People of the State of New York: 

THE President of the United States is to be "commander-in-chief of the army and 
navy of the United States, and of the militia of the several States when called into 
the actual service of the United States." The propriety of this provision is so 
evident in itself, and it is, at the same time, so consonant to the precedents of the 
State constitutions in general, that little need be said to explain or enforce it. Even 
those of them which have, in other respects, coupled the chief magistrate with a 
council, have for the most part concentrated the military authority in him alone. Of 
all the cares or concerns of government, the direction of war most peculiarly 
demands those qualities which distinguish the exercise of power by a single hand. 
The direction of war implies the direction of the common strength; and the power 
of directing and employing the common strength, forms a usual and essential part 
in the definition of the executive authority. 

"The President may require the opinion, in writing, of the principal officer in each of 
the executive departments, upon any subject relating to the duties of their 
respective officers." This I consider as a mere redundancy in the plan, as the right 
for which it provides would result of itself from the office. 



fiat, would naturally inspire scrupulousness and caution; the dread of being 
accused of weakness or connivance, would beget equal circumspection, though of 
a different kind. On the other hand, as men generally derive confidence from their 
numbers, they might often encourage each other in an act of obduracy, and might 
be less sensible to the apprehension of suspicion or censure for an injudicious or 
affected clemency. On these accounts, one man appears to be a more eligible 
dispenser of the mercy of government, than a body of men. 

The expediency of vesting the power of pardoning in the President has, if I mistake 
not, been only contested in relation to the crime of treason. This, it has been urged, 
ought to have depended upon the assent of one, or both, of the branches of the 
legislative body. I shall not deny that there are strong reasons to be assigned for 
requiring in this particular the concurrence of that body, or of a part of it. As 
treason is a crime levelled at the immediate being of the society, when the laws 
have once ascertained the guilt of the offender, there seems a fitness in referring 
the expediency of an act of mercy towards him to the judgment of the legislature. 
And this ought the rather to be the case, as the supposition of the connivance of 
the Chief Magistrate ought not to be entirely excluded. But there are also strong 
objections to such a plan. It is not to be doubted, that a single man of prudence 



they might often be found obstinate and inexorable, when policy demanded a 
conduct of forbearance and clemency. But the principal argument for reposing the 
power of pardoning in this case to the Chief Magistrate is this: in seasons of 
insurrection or rebellion, there are often critical moments, when a well-timed offer 
of pardon to the insurgents or rebels may restore the tranquillity of the 
commonwealth; and which, if suffered to pass unimproved, it may never be 
possible afterwards to recall. The dilatory process of convening the legislature, or 
one of its branches, for the purpose of obtaining its sanction to the measure, would 
frequently be the occasion of letting slip the golden opportunity. The loss of a 
week, a day, an hour, may sometimes be fatal. If it should be observed, that a 
discretionary power, with a view to such contingencies, might be occasionally 
conferred upon the President, it may be answered in the first place, that it is 
questionable, whether, in a limited Constitution, that power could be delegated by 
law; and in the second place, that it would generally be impolitic beforehand to 
take any step which might hold out the prospect of impunity. A proceeding of this 
kind, out of the usual course, would be likely to be construed into an argument of 
timidity or of weakness, and would have a tendency to embolden guilt. 

PUBLIUS 



HAMILTON 

To the People of the State of New York: 

THE President is to have power, "by and with the advice and consent of the 
Senate, to make treaties, provided two thirds of the senators present concur." 
Though this provision has been assailed, on different grounds, with no small 
degree of vehemence, I scruple not to declare my firm persuasion, that it is one of 
the best digested and most unexceptionable parts of the plan. One ground of 
objection is the trite topic of the intermixture of powers; some contending that the 
President ought alone to possess the power of making treaties; others, that it 
ought to have been exclusively deposited in the Senate. Another source of 
objection is derived from the small number of persons by whom a treaty may be 
made. Of those who espouse this objection, a part are of opinion that the House of 
Representatives ought to have been associated in the business, while another 
part seem to think that nothing more was necessary than to have substituted two 
thirds of all the members of the Senate, to two thirds of the members present. As I 
flatter myself the observations made in a preceding number upon this part of the 
plan must have sufficed to place it, to a discerning eye, in a very favorable light, I 



iuui iu lu pcii Ldt\c iiiuic ui u ic icy i^icili vc li id 1 1 ui li ic CACi/Uiivc uiaiaL-ici, LIIUUyillL 

does not seem strictly to fall within the definition of either of them. The essence of 
the legislative authority is to enact laws, or, in other words, to prescribe rules for 
the regulation of the society; while the execution of the laws, and the employment 
of the common strength, either for this purpose or for the common defense, seem 
to comprise all the functions of the executive magistrate. The power of making 
treaties is, plainly, neither the one nor the other. It relates neither to the execution of 
the subsisting laws, nor to the enaction of new ones; and still less to an exertion of 
the common strength. Its objects are CONTRACTS with foreign nations, which 
have the force of law, but derive it from the obligations of good faith. They are not 
rules prescribed by the sovereign to the subject, but agreements between 
sovereign and sovereign. The power in question seems therefore to form a distinct 
department, and to belong, properly, neither to the legislative nor to the executive. 
The qualities elsewhere detailed as indispensable in the management of foreign 
negotiations, point out the Executive as the most fit agent in those transactions; 
while the vast importance of the trust, and the operation of treaties as laws, plead 
strongly for the participation of the whole or a portion of the legislative body in the 
office of making them. 

However proper or safe it may be in governments where the executive magistrate 



betray the interests of the state to the acquisition of wealth. An ambitious man 
might make his own aggrandizement, by the aid of a foreign power, the price of 
his treachery to his constituents. The history of human conduct does not warrant 
that exalted opinion of human virtue which would make it wise in a nation to 
commit interests of so delicate and momentous a kind, as those which concern its 
intercourse with the rest of the world, to the sole disposal of a magistrate created 
and circumstanced as would be a President of the United States. 

To have intrusted the power of making treaties to the Senate alone, would have 
been to relinquish the benefits of the constitutional agency of the President in the 
conduct of foreign negotiations. It is true that the Senate would, in that case, have 
the option of employing him in this capacity, but they would also have the option of 
letting it alone, and pique or cabal might induce the latter rather than the former. 
Besides this, the ministerial servant of the Senate could not be expected to enjoy 
the confidence and respect of foreign powers in the same degree with the 
constitutional representatives of the nation, and, of course, would not be able to 
act with an equal degree of weight or efficacy. While the Union would, from this 
cause, lose a considerable advantage in the management of its external concerns, 
the people would lose the additional security which would result from the co- 



i i ic i ci i icii i\o 1 1 iciuc nia iui 1 1 ici i iui i iuci , vvi iiui i i lave ucci i cuiuucu lu i i i cli iuu ici pai l 

of this paper, will apply with conclusive force against the admission of the House 
of Representatives to a share in the formation of treaties. The fluctuating and, 
taking its future increase into the account, the multitudinous composition of that 
body, forbid us to expect in it those qualities which are essential to the proper 
execution of such a trust. Accurate and comprehensive knowledge of foreign 
politics; a steady and systematic adherence to the same views; a nice and uniform 
sensibility to national character; decision, secrecy, and despatch, are 
incompatible with the genius of a body so variable and so numerous. The very 
complication of the business, by introducing a necessity of the concurrence of so 
many different bodies, would of itself afford a solid objection. The greater 
frequency of the calls upon the House of Representatives, and the greater length of 
time which it would often be necessary to keep them together when convened, to 
obtain their sanction in the progressive stages of a treaty, would be a source of so 
great inconvenience and expense as alone ought to condemn the project. 

The only objection which remains to be canvassed, is that which would substitute 
the proportion of two thirds of all the members composing the senatorial body, to 
that of two thirds of the members present. It has been shown, under the second 
head of our inquiries, that all provisions which require more than the majority of any 



the Polish Diet, and the States-General of the Netherlands, did not an example at 
home render foreign precedents unnecessary. 

To require a fixed proportion of the whole body would not, in all probability, 
contribute to the advantages of a numerous agency, better then merely to require a 
proportion of the attending members. The former, by making a determinate 
number at all times requisite to a resolution, diminishes the motives to punctual 
attendance. The latter, by making the capacity of the body to depend on a 
proportion which may be varied by the absence or presence of a single member, 
has the contrary effect. And as, by promoting punctuality, it tends to keep the body 
complete, there is great likelihood that its resolutions would generally be dictated 
by as great a number in this case as in the other; while there would be much fewer 
occasions of delay. It ought not to be forgotten that, under the existing 
Confederation, two members may, and usually do, represent a State; whence it 
happens that Congress, who now are solely invested with all the powers of the 
Union, rarely consist of a greater number of persons than would compose the 
intended Senate. If we add to this, that as the members vote by States, and that 
where there is only a single member present from a State, his vote is lost, it will 
justify a supposition that the active voices in the Senate, where the members are 



PUBLIUS 



FEDERALIST No. 76. The Appointing Power of 

the Executive 

From the New York Packet. Tuesday, April 1, 1788. 

HAMILTON 

To the People of the State of New York: 

THE President is "to nominate, and, by and with the advice and consent of the 



uu^ci vciliui i uc duiiiiLLCu, li ic inuuc ui appun ili i ly li ic uiiiucrio ui li ic wiiilcu oiaica 

contained in the foregoing clauses, must, when examined, be allowed to be 
entitled to particular commendation. It is not easy to conceive a plan better 
calculated than this to promote a judicious choice of men for filling the offices of 
the Union; and it will not need proof, that on this point must essentially depend the 
character of its administration. 

It will be agreed on all hands, that the power of appointment, in ordinary cases, 
ought to be modified in one of three ways. It ought either to be vested in a single 
man, or in a select assembly of a moderate number; or in a single man, with the 
concurrence of such an assembly. The exercise of it by the people at large will be 
readily admitted to be impracticable; as waiving every other consideration, it 
would leave them little time to do anything else. When, therefore, mention is made 
in the subsequent reasonings of an assembly or body of men, what is said must 
be understood to relate to a select body or assembly, of the description already 
given. The people collectively, from their number and from their dispersed 
situation, cannot be regulated in their movements by that systematic spirit of cabal 
and intrigue, which will be urged as the chief objections to reposing the power in 
question in a body of men. 



i ii 1 1 ioct ii ui iuci OLiuiiLjcri uunyauui 10, di iu iiiuic n iicicoicu lu ii ivcc^uycuc vviu i ^a\ c 

the qualities requisite to the stations to be filled, and to prefer with impartiality the 
persons who may have the fairest pretensions to them. He will have fewer 
personal attachments to gratify, than a body of men who may each be supposed to 
have an equal number; and will be so much the less liable to be misled by the 
sentiments of friendship and of affection. A single well-directed man, by a single 
understanding, cannot be distracted and warped by that diversity of views, 
feelings, and interests, which frequently distract and warp the resolutions of a 
collective body. There is nothing so apt to agitate the passions of mankind as 
personal considerations whether they relate to ourselves or to others, who are to 
be the objects of our choice or preference. Hence, in every exercise of the power 
of appointing to offices, by an assembly of men, we must expect to see a full 
display of all the private and party likings and dislikes, partialities and antipathies, 
attachments and animosities, which are felt by those who compose the assembly. 
The choice which may at any time happen to be made under such circumstances, 
will of course be the result either of a victory gained by one party over the other, or 
of a compromise between the parties. In either case, the intrinsic merit of the 
candidate will be too often out of sight. In the first, the qualifications best adapted 
to uniting the suffrages of the party, will be more considered than those which fit 



OUUdlCU IUC, UC UCIIVCU IIUIII LI IC kJUVVCI Ul I IUI I III ICUIUI I, VVIIIUII IO |JIU|JUOCU LU uc 

conferred upon him; while several disadvantages which might attend the absolute 
power of appointment in the hands of that officer would be avoided. In the act of 
nomination, his judgment alone would be exercised; and as it would be his sole 
duty to point out the man who, with the approbation of the Senate, should fill an 
office, his responsibility would be as complete as if he were to make the final 
appointment. There can, in this view, be no difference between nominating and 
appointing. The same motives which would influence a proper discharge of his 
duty in one case, would exist in the other. And as no man could be appointed but 
on his previous nomination, every man who might be appointed would be, in fact, 
his choice. 

But might not his nomination be overruled? I grant it might, yet this could only be to 
make place for another nomination by himself. The person ultimately appointed 
must be the object of his preference, though perhaps not in the first degree. It is 
also not very probable that his nomination would often be overruled. The Senate 
could not be tempted, by the preference they might feel to another, to reject the 
one proposed; because they could not assure themselves, that the person they 
might wish would be brought forward by a second or by any subsequent 
nomination. They could not even be certain, that a future nomination would present 



view lu pupuicu ny. ii i auuiuui i lu li no, u vvuuiu ucan cinuauiuuo ouuiuc ui oiaumiy n i 

the administration. 

It will readily be comprehended, that a man who had himself the sole disposition of 
offices, would be governed much more by his private inclinations and interests, 
than when he was bound to submit the propriety of his choice to the discussion 
and determination of a different and independent body, and that body an entire 
branch of the legislature. The possibility of rejection would be a strong motive to 
care in proposing. The danger to his own reputation, and, in the case of an 
elective magistrate, to his political existence, from betraying a spirit of favoritism, 
or an unbecoming pursuit of popularity, to the observation of a body whose opinion 
would have great weight in forming that of the public, could not fail to operate as a 
barrier to the one and to the other. He would be both ashamed and afraid to bring 
forward, for the most distinguished or lucrative stations, candidates who had no 
other merit than that of coming from the same State to which he particularly 
belonged, or of being in some way or other personally allied to him, or of 
possessing the necessary insignificance and pliancy to render them the 
obsequious instruments of his pleasure. 

To this reasoning it has been objected that the President, by the influence of the 



who have an influential weight in the councils of the nation. Hence it is (the present 
reign not excepted) that the sense of that body is often seen to control the 
inclinations of the monarch, both with regard to men and to measures. Though it 
might therefore be allowable to suppose that the Executive might occasionally 
influence some individuals in the Senate, yet the supposition, that he could in 
general purchase the integrity of the whole body, would be forced and improbable. 
A man disposed to view human nature as it is, without either flattering its virtues or 
exaggerating its vices, will see sufficient ground of confidence in the probity of the 
Senate, to rest satisfied, not only that it will be impracticable to the Executive to 
corrupt or seduce a majority of its members, but that the necessity of its co- 
operation, in the business of appointments, will be a considerable and salutary 
restraint upon the conduct of that magistrate. Nor is the integrity of the Senate the 
only reliance. The Constitution has provided some important guards against the 
danger of executive influence upon the legislative body: it declares that "No 
senator or representative shall during the time for which he was elected, be 
appointed to any civil office under the United States, which shall have been 
created, or the emoluments whereof shall have been increased, during such time; 
and no person, holding any office under the United States, shall be a member of 
either house during his continuance in office." 



From The Independent Journal. Wednesday, April 2, 1788. 

HAMILTON 

To the People of the State of New York: 

IT HAS been mentioned as one of the advantages to be expected from the co- 
operation of the Senate, in the business of appointments, that it would contribute 
to the stability of the administration. The consent of that body would be necessary 
to displace as well as to appoint. A change of the Chief Magistrate, therefore, 
would not occasion so violent or so general a revolution in the officers of the 
government as might be expected, if he were the sole disposer of offices. Where 
a man in any station had given satisfactory evidence of his fitness for it, a new 
President would be restrained from attempting a change in favor of a person more 
agreeable to him, by the apprehension that a discountenance of the Senate might 
frustrate the attempt, and bring some degree of discredit upon himself. Those who 
can best estimate the value of a steady administration, will be most disposed to 



have the power of restraining him. This is an absurdity in terms. It cannot admit of 
a doubt that the entire power of appointment would enable him much more 
effectually to establish a dangerous empire over that body, than a mere power of 
nomination subject to their control. 

Let us take a view of the converse of the proposition: "the Senate would influence 
the Executive." As I have had occasion to remark in several other instances, the 
indistinctness of the objection forbids a precise answer. In what manner is this 
influence to be exerted? In relation to what objects? The power of influencing a 
person, in the sense in which it is here used, must imply a power of conferring a 
benefit upon him. How could the Senate confer a benefit upon the President by the 
manner of employing their right of negative upon his nominations? If it be said they 
might sometimes gratify him by an acquiescence in a favorite choice, when public 
motives might dictate a different conduct, I answer, that the instances in which the 
President could be personally interested in the result, would be too few to admit of 
his being materially affected by the compliances of the Senate. The POWER 
which can originate the disposition of honors and emoluments, is more likely to 
attract than to be attracted by the POWER which can merely obstruct their course. 
If by influencing the President be meant restraining him, this is precisely what must 



icy i^icuui c, li ic unuui i ioicu iuco ciuci iuii ly ai i appuii ili i ici il, iiuiii li ic iiiuuc ui 

conducting it, would naturally become matters of notoriety; and the public would be 
at no loss to determine what part had been performed by the different actors. The 
blame of a bad nomination would fall upon the President singly and absolutely. The 
censure of rejecting a good one would lie entirely at the door of the Senate; 
aggravated by the consideration of their having counteracted the good intentions 
of the Executive. If an ill appointment should be made, the Executive for 
nominating, and the Senate for approving, would participate, though in different 
degrees, in the opprobrium and disgrace. 

The reverse of all this characterizes the manner of appointment in this State. The 
council of appointment consists of from three to five persons, of whom the 
governor is always one. This small body, shut up in a private apartment, 
impenetrable to the public eye, proceed to the execution of the trust committed to 
them. It is known that the governor claims the right of nomination, upon the strength 
of some ambiguous expressions in the constitution; but it is not known to what 
extent, or in what manner he exercises it; nor upon what occasions he is 
contradicted or opposed. The censure of a bad appointment, on account of the 
uncertainty of its author, and for want of a determinate object, has neither 
poignancy nor duration. And while an unbounded field for cabal and intrigue lies 



chief merit is their implicit devotion to his will, and to the support of a despicable 
and dangerous system of personal influence, are questions which, unfortunately for 
the community, can only be the subjects of speculation and conjecture. 

Every mere council of appointment, however constituted, will be a conclave, in 
which cabal and intrigue will have their full scope. Their number, without an 
unwarrantable increase of expense, cannot be large enough to preclude a facility 
of combination. And as each member will have his friends and connections to 
provide for, the desire of mutual gratification will beget a scandalous bartering of 
votes and bargaining for places. The private attachments of one man might easily 
be satisfied; but to satisfy the private attachments of a dozen, or of twenty men, 
would occasion a monopoly of all the principal employments of the government in 
a few families, and would lead more directly to an aristocracy or an oligarchy than 
any measure that could be contrived. If, to avoid an accumulation of offices, there 
was to be a frequent change in the persons who were to compose the council, this 
would involve the mischiefs of a mutable administration in their full extent. Such a 
council would also be more liable to executive influence than the Senate, because 
they would be fewer in number, and would act less immediately under the public 
inspection. Such a council, in fine, as a substitute for the plan of the convention, 



aa uuuy au nuuLuauiiL) cii iu ai u ic ocuiic UIIIC 5U I iui I ICIUUO, UCll I I ICVCI UCUCCIIICU 

proper for the exercise of that power. Its unfitness will appear manifest to all, when 
it is recollected that in half a century it may consist of three or four hundred 
persons. All the advantages of the stability, both of the Executive and of the 
Senate, would be defeated by this union, and infinite delays and embarrassments 
would be occasioned. The example of most of the States in their local 
constitutions encourages us to reprobate the idea. 

The only remaining powers of the Executive are comprehended in giving 
information to Congress of the state of the Union; in recommending to their 
consideration such measures as he shall judge expedient; in convening them, or 
either branch, upon extraordinary occasions; in adjourning them when they cannot 
themselves agree upon the time of adjournment; in receiving ambassadors and 
other public ministers; in faithfully executing the laws; and in commissioning all the 
officers of the United States. 

Except some cavils about the power of convening either house of the legislature, 
and that of receiving ambassadors, no objection has been made to this class of 
authorities; nor could they possibly admit of any. It required, indeed, an insatiable 
avidity for censure to invent exceptions to the parts which have been excepted to. 



cuou uui i iuii ic u ic icl|uioilco lu ocuciy, nia icpuuii^cu i oci iocaa — a uuc ucljci iuci iuc 

on the people, a due responsibility? The answer to this question has been 
anticipated in the investigation of its other characteristics, and is satisfactorily 
deducible from these circumstances; from the election of the President once in 
four years by persons immediately chosen by the people for that purpose; and 
from his being at all times liable to impeachment, trial, dismission from office, 
incapacity to serve in any other, and to forfeiture of life and estate by subsequent 
prosecution in the common course of law. But these precautions, great as they 
are, are not the only ones which the plan of the convention has provided in favor of 
the public security. In the only instances in which the abuse of the executive 
authority was materially to be feared, the Chief Magistrate of the United States 
would, by that plan, be subjected to the control of a branch of the legislative body. 
What more could be desired by an enlightened and reasonable people? 

PUBLIUS 

El. These two alternate endings of this sentence appear in different editions. 



To the People of the State of New York: 

WE PROCEED now to an examination of the judiciary department of the 
proposed government. 

In unfolding the defects of the existing Confederation, the utility and necessity of a 
federal judicature have been clearly pointed out. It is the less necessary to 
recapitulate the considerations there urged, as the propriety of the institution in the 
abstract is not disputed; the only questions which have been raised being relative 
to the manner of constituting it, and to its extent. To these points, therefore, our 
observations shall be confined. 

The manner of constituting it seems to embrace these several objects: 1st. The 
mode of appointing the judges. 2d. The tenure by which they are to hold their 
places. 3d. The partition of the judiciary authority between different courts, and 
their relations to each other. 

First. As to the mode of appointing the judges; this is the same with that of 
appointing the officers of the Union in general, and has been so fully discussed in 



and judgments. The standard of good behavior for the continuance in office of the 
judicial magistracy, is certainly one of the most valuable of the modern 
improvements in the practice of government. In a monarchy it is an excellent 
barrier to the despotism of the prince; in a republic it is a no less excellent barrier 
to the encroachments and oppressions of the representative body. And it is the 
best expedient which can be devised in any government, to secure a steady, 
upright, and impartial administration of the laws. 

Whoever attentively considers the different departments of power must perceive, 
that, in a government in which they are separated from each other, the judiciary, 
from the nature of its functions, will always be the least dangerous to the political 
rights of the Constitution; because it will be least in a capacity to annoy or injure 
them. The Executive not only dispenses the honors, but holds the sword of the 
community. The legislature not only commands the purse, but prescribes the rules 
by which the duties and rights of every citizen are to be regulated. The judiciary, on 
the contrary, has no influence over either the sword or the purse; no direction either 
of the strength or of the wealth of the society; and can take no active resolution 
whatever. It may truly be said to have neither FORCE nor WILL, but merely 
judgment; and must ultimately depend upon the aid of the executive arm even for 



jjuvvcio. \t-) aai iu il jjiuvcro, n i u ic ia.01 (jiauc, u icii ao iiuci iy uai i i lave i iuu in ly lu icai 

from the judiciary alone, but would have every thing to fear from its union with either 
of the other departments; that as all the effects of such a union must ensue from a 
dependence of the former on the latter, notwithstanding a nominal and apparent 
separation; that as, from the natural feebleness of the judiciary, it is in continual 
jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; 
and that as nothing can contribute so much to its firmness and independence as 
permanency in office, this quality may therefore be justly regarded as an 
indispensable ingredient in its constitution, and, in a great measure, as the citadel 
of the public justice and the public security. 

The complete independence of the courts of justice is peculiarly essential in a 
limited Constitution. By a limited Constitution, I understand one which contains 
certain specified exceptions to the legislative authority; such, for instance, as that it 
shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of 
this kind can be preserved in practice no other way than through the medium of 
courts of justice, whose duty it must be to declare all acts contrary to the manifest 
tenor of the Constitution void. Without this, all the reservations of particular rights 
or privileges would amount to nothing. 



vcuiu. i u uci ly u no, vvuuiu uc lu aim i i i, u icil u ic ucpuiy 10 yi caici u icu i i no pi n iui|jcu, 

that the servant is above his master; that the representatives of the people are 
superior to the people themselves; that men acting by virtue of powers, may do not 
only what their powers do not authorize, but what they forbid. 

If it be said that the legislative body are themselves the constitutional judges of 
their own powers, and that the construction they put upon them is conclusive upon 
the other departments, it may be answered, that this cannot be the natural 
presumption, where it is not to be collected from any particular provisions in the 
Constitution. It is not otherwise to be supposed, that the Constitution could intend 
to enable the representatives of the people to substitute their will to that of their 
constituents. It is far more rational to suppose, that the courts were designed to be 
an intermediate body between the people and the legislature, in order, among 
other things, to keep the latter within the limits assigned to their authority. The 
interpretation of the laws is the proper and peculiar province of the courts. A 
constitution is, in fact, and must be regarded by the judges, as a fundamental law. 
It therefore belongs to them to ascertain its meaning, as well as the meaning of 
any particular act proceeding from the legislative body. If there should happen to 
be an irreconcilable variance between the two, that which has the superior 
obligation and validity ought, of course, to be preferred; or, in other words, the 



statutes existing at one time, clashing in whole or in part with each other, and 
neither of them containing any repealing clause or expression. In such a case, it is 
the province of the courts to liquidate and fix their meaning and operation. So far 
as they can, by any fair construction, be reconciled to each other, reason and law 
conspire to dictate that this should be done; where this is impracticable, it 
becomes a matter of necessity to give effect to one, in exclusion of the other. The 
rule which has obtained in the courts for determining their relative validity is, that 
the last in order of time shall be preferred to the first. But this is a mere rule of 
construction, not derived from any positive law, but from the nature and reason of 
the thing. It is a rule not enjoined upon the courts by legislative provision, but 
adopted by themselves, as consonant to truth and propriety, for the direction of 
their conduct as interpreters of the law. They thought it reasonable, that between 
the interfering acts of an EQUAL authority, that which was the last indication of its 
will should have the preference. 

But in regard to the interfering acts of a superior and subordinate authority, of an 
original and derivative power, the nature and reason of the thing indicate the 
converse of that rule as proper to be followed. They teach us that the prior act of a 
superior ought to be preferred to the subsequent act of an inferior and subordinate 



u iai uicic uuy i n lu uc i iu juuyccs uioui iul iiui i i u iai uuuy. 

If, then, the courts of justice are to be considered as the bulwarks of a limited 
Constitution against legislative encroachments, this consideration will afford a 
strong argument for the permanent tenure of judicial offices, since nothing will 
contribute so much as this to that independent spirit in the judges which must be 
essential to the faithful performance of so arduous a duty. 

This independence of the judges is equally requisite to guard the Constitution and 
the rights of individuals from the effects of those ill humors, which the arts of 
designing men, or the influence of particular conjunctures, sometimes disseminate 
among the people themselves, and which, though they speedily give place to 
better information, and more deliberate reflection, have a tendency, in the 
meantime, to occasion dangerous innovations in the government, and serious 
oppressions of the minor party in the community. Though I trust the friends of the 
proposed Constitution will never concur with its enemies, (3) in questioning that 
fundamental principle of republican government, which admits the right of the 
people to alter or abolish the established Constitution, whenever they find it 
inconsistent with their happiness, yet it is not to be inferred from this principle, that 
the representatives of the people, whenever a momentary inclination happens to 



community. 

But it is not with a view to infractions of the Constitution only, that the 
independence of the judges may be an essential safeguard against the effects of 
occasional ill humors in the society. These sometimes extend no farther than to the 
injury of the private rights of particular classes of citizens, by unjust and partial 
laws. Here also the firmness of the judicial magistracy is of vast importance in 
mitigating the severity and confining the operation of such laws. It not only serves 
to moderate the immediate mischiefs of those which may have been passed, but it 
operates as a check upon the legislative body in passing them; who, perceiving 
that obstacles to the success of iniquitous intention are to be expected from the 
scruples of the courts, are in a manner compelled, by the very motives of the 
injustice they meditate, to qualify their attempts. This is a circumstance calculated 
to have more influence upon the character of our governments, than but few may 
be aware of. The benefits of the integrity and moderation of the judiciary have 
already been felt in more States than one; and though they may have displeased 
those whose sinister expectations they may have disappointed, they must have 
commanded the esteem and applause of all the virtuous and disinterested. 
Considerate men, of every description, ought to prize whatever will tend to beget 



u ic puvvci ui iiidt\iiiy Liiciii vvaa uui i n i iillcu ciuici lu liic i_acuulivc ui icy i^icuui c, 

there would be danger of an improper complaisance to the branch which 
possessed it; if to both, there would be an unwillingness to hazard the displeasure 
of either; if to the people, or to persons chosen by them for the special purpose, 
there would be too great a disposition to consult popularity, to justify a reliance that 
nothing would be consulted but the Constitution and the laws. 

There is yet a further and a weightier reason for the permanency of the judicial 
offices, which is deducible from the nature of the qualifications they require. It has 
been frequently remarked, with great propriety, that a voluminous code of laws is 
one of the inconveniences necessarily connected with the advantages of a free 
government. To avoid an arbitrary discretion in the courts, it is indispensable that 
they should be bound down by strict rules and precedents, which serve to define 
and point out their duty in every particular case that comes before them; and it will 
readily be conceived from the variety of controversies which grow out of the folly 
and wickedness of mankind, that the records of those precedents must 
unavoidably swell to a very considerable bulk, and must demand long and 
laborious study to acquire a competent knowledge of them. Hence it is, that there 
can be but few men in the society who will have sufficient skill in the laws to qualify 
them for the stations of judges. And making the proper deductions for the ordinary 



Upon the whole, there can be no room to doubt that the convention acted wisely in 
copying from the models of those constitutions which have established good 
behavior as the tenure of their judicial offices, in point of duration; and that so far 
from being blamable on this account, their plan would have been inexcusably 
defective, if it had wanted this important feature of good government. The 
experience of Great Britain affords an illustrious comment on the excellence of the 
institution. 

PUBLIUS 

1. The celebrated Montesquieu, speaking of them, says: "Of the three powers 
above mentioned, the judiciary is next to nothing. "A — Spirit of Laws. Vol. I, page 
186. 

2. Idem, page 181. 

3. Vide Protest of the Minority of the Convention of Pennsylvania, Martin's Speech, 
etc. 



I-IAIVIIL IUIM 

To the People of the State of New York: 

NEXT to permanency in office, nothing can contribute more to the independence 
of the judges than a fixed provision for their support. The remark made in relation 
to the President is equally applicable here. In the general course of human nature, 
a power over a man's subsistence amounts to a power over his will. And we can 
never hope to see realized in practice, the complete separation of the judicial from 
the legislative power, in any system which leaves the former dependent for 
pecuniary resources on the occasional grants of the latter. The enlightened friends 
to good government in every State, have seen cause to lament the want of precise 
and explicit precautions in the State constitutions on this head. Some of these 
indeed have declared that permanent(l) salaries should be established for the 
judges; but the experiment has in some instances shown that such expressions 
are not sufficiently definite to preclude legislative evasions. Something still more 
positive and unequivocal has been evinced to be requisite. The plan of the 
convention accordingly has provided that the judges of the United States "shall at 
stated times receive for their services a compensation which shall not be 



i no uuiy uy u ic appici ici ioiui i ui ucniy [jiaucu in a icao cnyiuic ouuauuii. i i ic 

clause which has been quoted combines both advantages. The salaries of judicial 
officers may from time to time be altered, as occasion shall require, yet so as 
never to lessen the allowance with which any particular judge comes into office, in 
respect to him. It will be observed that a difference has been made by the 
convention between the compensation of the President and of the judges, That of 
the former can neither be increased nor diminished; that of the latter can only not 
be diminished. This probably arose from the difference in the duration of the 
respective offices. As the President is to be elected for no more than four years, it 
can rarely happen that an adequate salary, fixed at the commencement of that 
period, will not continue to be such to its end. But with regard to the judges, who, if 
they behave properly, will be secured in their places for life, it may well happen, 
especially in the early stages of the government, that a stipend, which would be 
very sufficient at their first appointment, would become too small in the progress of 
their service. 

This provision for the support of the judges bears every mark of prudence and 
efficacy; and it may be safely affirmed that, together with the permanent tenure of 
their offices, it affords a better prospect of their independence than is 
discoverable in the constitutions of any of the States in regard to their own judges. 



calculated to answer any good purpose. The mensuration of the faculties of the 
mind has, I believe, no place in the catalogue of known arts. An attempt to fix the 
boundary between the regions of ability and inability, would much oftener give 
scope to personal and party attachments and enmities than advance the interests 
of justice or the public good. The result, except in the case of insanity, must for the 
most part be arbitrary; and insanity, without any formal or express provision, may 
be safely pronounced to be a virtual disqualification. 

The constitution of New York, to avoid investigations that must forever be vague 
and dangerous, has taken a particular age as the criterion of inability. No man can 
be a judge beyond sixty. I believe there are few at present who do not disapprove 
of this provision. There is no station, in relation to which it is less proper than to 
that of a judge. The deliberating and comparing faculties generally preserve their 
strength much beyond that period in men who survive it; and when, in addition to 
this circumstance, we consider how few there are who outlive the season of 
intellectual vigor, and how improbable it is that any considerable portion of the 
bench, whether more or less numerous, should be in such a situation at the same 
time, we shall be ready to conclude that limitations of this sort have little to 
recommend them. In a republic, where fortunes are not affluent, and pensions not 



FEDERALIST No. 80. The Powers of the Judiciary 

From McLEAN's Edition, New York. Wednesday, May 28, 

1788. 



HAMILTON 

To the People of the State of New York: 

TO JUDGE with accuracy of the proper extent of the federal judicature, it will be 
necessary to consider, in the first place, what are its proper objects. 

It seems scarcely to admit of controversy, that the judiciary authority of the Union 
ought to extend to these several descriptions of cases: 1st, to all those which arise 
out of the laws of the United States, passed in pursuance of their just and 



nioiaiiuc, vvuuiu avail icouh/Liuid ui i u ic auuiuiuy ui li ic oiaic icyioiaiuico, vviuiuul 

some constitutional mode of enforcing the observance of them? The States, by the 
plan of the convention, are prohibited from doing a variety of things, some of which 
are incompatible with the interests of the Union, and others with the principles of 
good government. The imposition of duties on imported articles, and the emission 
of paper money, are specimens of each kind. No man of sense will believe, that 
such prohibitions would be scrupulously regarded, without some effectual power in 
the government to restrain or correct the infractions of them. This power must 
either be a direct negative on the State laws, or an authority in the federal courts to 
overrule such as might be in manifest contravention of the articles of Union. There 
is no third course that I can imagine. The latter appears to have been thought by 
the convention preferable to the former, and, I presume, will be most agreeable to 
the States. 

As to the second point, it is impossible, by any argument or comment, to make it 
clearer than it is in itself. If there are such things as political axioms, the propriety 
of the judicial power of a government being coextensive with its legislative, may be 
ranked among the number. The mere necessity of uniformity in the interpretation of 
the national laws, decides the question. Thirteen independent courts of final 
jurisdiction over the same causes, arising upon the same laws, is a hydra in 



is with reason classed among the just causes of war, it will follow that the federal 
judiciary ought to have cognizance of all causes in which the citizens of other 
countries are concerned. This is not less essential to the preservation of the public 
faith, than to the security of the public tranquillity. A distinction may perhaps be 
imagined between cases arising upon treaties and the laws of nations and those 
which may stand merely on the footing of the municipal law. The former kind may 
be supposed proper for the federal jurisdiction, the latter for that of the States. But 
it is at least problematical, whether an unjust sentence against a foreigner, where 
the subject of controversy was wholly relative to the lex loci, would not, if 
unredressed, be an aggression upon his sovereign, as well as one which violated 
the stipulations of a treaty or the general law of nations. And a still greater 
objection to the distinction would result from the immense difficulty, if not 
impossibility, of a practical discrimination between the cases of one complexion 
and those of the other. So great a proportion of the cases in which foreigners are 
parties, involve national questions, that it is by far most safe and most expedient to 
refer all those in which they are concerned to the national tribunals. 

The power of determining causes between two States, between one State and the 
citizens of another, and between the citizens of different States, is perhaps not 



ii ilci ici ii iy i.icuiiio ui uuuiiuciiy, iiuiii vviiil.ii uiuinciii lyo cu iu cu in i iuoiuco may opiiiiy 

up among the members of the Union. To some of these we have been witnesses 
in the course of our past experience. It will readily be conjectured that I allude to the 
fraudulent laws which have been passed in too many of the States. And though the 
proposed Constitution establishes particular guards against the repetition of those 
instances which have heretofore made their appearance, yet it is warrantable to 
apprehend that the spirit which produced them will assume new shapes, that could 
not be foreseen nor specifically provided against. Whatever practices may have a 
tendency to disturb the harmony between the States, are proper objects of federal 
superintendence and control. 

It may be esteemed the basis of the Union, that "the citizens of each State shall be 
entitled to all the privileges and immunities of citizens of the several States." And if 
it be a just principle that every government ought to possess the means of 
executing its own provisions by its own authority, it will follow, that in order to the 
inviolable maintenance of that equality of privileges and immunities to which the 
citizens of the Union will be entitled, the national judiciary ought to preside in all 
cases in which one State or its citizens are opposed to another State or its 
citizens. To secure the full effect of so fundamental a provision against all evasion 
and subterfuge, it is necessary that its construction should be committed to that 



The reasonableness of the agency of the national courts in cases in which the 
State tribunals cannot be supposed to be impartial, speaks for itself. No man 
ought certainly to be a judge in his own cause, or in any cause in respect to which 
he has the least interest or bias. This principle has no inconsiderable weight in 
designating the federal courts as the proper tribunals for the determination of 
controversies between different States and their citizens. And it ought to have the 
same operation in regard to some cases between citizens of the same State. 
Claims to land under grants of different States, founded upon adverse pretensions 
of boundary, are of this description. The courts of neither of the granting States 
could be expected to be unbiased. The laws may have even prejudged the 
question, and tied the courts down to decisions in favor of the grants of the State 
to which they belonged. And even where this had not been done, it would be 
natural that the judges, as men, should feel a strong predilection to the claims of 
their own government. 

Having thus laid down and discussed the principles which ought to regulate the 
constitution of the federal judiciary, we will proceed to test, by these principles, the 
particular powers of which, according to the plan of the convention, it is to be 
composed. It is to comprehend "all cases in law and equity arising under the 



li ic wiiilcu oiaico. 1 1 no luiicc5|juiiuc5 vvilii u ic lvvu 111 ol uiciooco Ul UOU3CO, VVI IIL.I I 

have been enumerated, as proper for the jurisdiction of the United States. It has 
been asked, what is meant by "cases arising under the Constitution," in 
contradiction from those "arising under the laws of the United States"? The 
difference has been already explained. All the restrictions upon the authority of the 
State legislatures furnish examples of it. They are not, for instance, to emit paper 
money; but the interdiction results from the Constitution, and will have no 
connection with any law of the United States. Should paper money, 
notwithstanding, be emited, the controversies concerning it would be cases 
arising under the Constitution and not the laws of the United States, in the ordinary 
signification of the terms. This may serve as a sample of the whole. 

It has also been asked, what need of the word "equity". What equitable causes 
can grow out of the Constitution and laws of the United States? There is hardly a 
subject of litigation between individuals, which may not involve those ingredients of 
fraud, accident, trust, or hardship, which would render the matter an object of 
equitable rather than of legal jurisdiction, as the distinction is known and 
established in several of the States. It is the peculiar province, for instance, of a 
court of equity to relieve against what are called hard bargains: these are 
contracts in which, though there may have been no direct fraud or deceit, sufficient 



1 1 ic juuiuiaiy auu luiuy ui u ic ui iiui i 10 lu calci iu. 

Second. To treaties made, or which shall be made, under the authority of the 
United States, and to all cases affecting ambassadors, other public ministers, and 
consuls. These belong to the fourth class of the enumerated cases, as they have 
an evident connection with the preservation of the national peace. 

Third. To cases of admiralty and maritime jurisdiction. These form, altogether, the 
fifth of the enumerated classes of causes proper for the cognizance of the national 
courts. 

Fourth. To controversies to which the United States shall be a party. These 
constitute the third of those classes. 

Fifth. To controversies between two or more States; between a State and citizens 
of another State; between citizens of different States. These belong to the fourth of 
those classes, and partake, in some measure, of the nature of the last. 

Sixth. To cases between the citizens of the same State, claiming lands under 
grants of different States. These fall within the last class, and are the only 
instances in which the proposed Constitution directly contemplates the cognizance 



to be recollected that the national legislature will have ample authority to make 
such exceptions, and to prescribe such regulations as will be calculated to obviate 
or remove these inconveniences. The possibility of particular mischiefs can never 
be viewed, by a wellinformed mind, as a solid objection to a general principle, 
which is calculated to avoid general mischiefs and to obtain general advantages. 

PUBLIUS 



FEDERALIST No. 81. The Judiciary Continued, 
and the Distribution of the Judicial Authority. 

From McLEAN's Edition, New York. Wednesday, May 28, 

1788. 



That there ought to be one court of supreme and final jurisdiction, is a proposition 
which is not likely to be contested. The reasons for it have been assigned in 
another place, and are too obvious to need repetition. The only question that 
seems to have been raised concerning it, is, whether it ought to be a distinct body 
or a branch of the legislature. The same contradiction is observable in regard to 
this matter which has been remarked in several other cases. The very men who 
object to the Senate as a court of impeachments, on the ground of an improper 
intermixture of powers, advocate, by implication at least, the propriety of vesting 
the ultimate decision of all causes, in the whole or in a part of the legislative body. 

The arguments, or rather suggestions, upon which this charge is founded, are to 
this effect: "The authority of the proposed Supreme Court of the United States, 
which is to be a separate and independent body, will be superior to that of the 
legislature. The power of construing the laws according to the spirit of the 
Constitution, will enable that court to mould them into whatever shape it may think 
proper; especially as its decisions will not be in any manner subject to the revision 
or correction of the legislative body. This is as unprecedented as it is dangerous. 
In Britain, the judicial power, in the last resort, resides in the House of Lords, which 
is a branch of the legislature; and this part of the British government has been 



uuy i il lu uc u ic oicu luaiu ui uui ioli uuuui i iui u ic lavvo, a\ iu u icii vvi icicvci u ici c 10 a.\ i 

evident opposition, the laws ought to give place to the Constitution. But this 
doctrine is not deducible from any circumstance peculiar to the plan of the 
convention, but from the general theory of a limited Constitution; and as far as it is 
true, is equally applicable to most, if not to all the State governments. There can be 
no objection, therefore, on this account, to the federal judicature which will not lie 
against the local judicatures in general, and which will not serve to condemn every 
constitution that attempts to set bounds to legislative discretion. 

But perhaps the force of the objection may be thought to consist in the particular 
organization of the Supreme Court; in its being composed of a distinct body of 
magistrates, instead of being one of the branches of the legislature, as in the 
government of Great Britain and that of the State. To insist upon this point, the 
authors of the objection must renounce the meaning they have labored to annex to 
the celebrated maxim, requiring a separation of the departments of power. It shall, 
nevertheless, be conceded to them, agreeably to the interpretation given to that 
maxim in the course of these papers, that it is not violated by vesting the ultimate 
power of judging in a PART of the legislative body. But though this be not an 
absolute violation of that excellent rule, yet it verges so nearly upon it, as on this 
account alone to be less eligible than the mode preferred by the convention. From 



for their knowledge of the laws, acquired by long and laborious study, to the 
revision and control of men who, for want of the same advantage, cannot but be 
deficient in that knowledge. The members of the legislature will rarely be chosen 
with a view to those qualifications which fit men for the stations of judges; and as, 
on this account, there will be great reason to apprehend all the ill consequences of 
defective information, so, on account of the natural propensity of such bodies to 
party divisions, there will be no less reason to fear that the pestilential breath of 
faction may poison the fountains of justice. The habit of being continually 
marshalled on opposite sides will be too apt to stifle the voice both of law and of 
equity. 

These considerations teach us to applaud the wisdom of those States who have 
committed the judicial power, in the last resort, not to a part of the legislature, but 
to distinct and independent bodies of men. Contrary to the supposition of those 
who have represented the plan of the convention, in this respect, as novel and 
unprecedented, it is but a copy of the constitutions of New Hampshire, 
Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, 
South Carolina, and Georgia; and the preference which has been given to those 
models is highly to be commended. 



State governments, as to the national government now under consideration. Not 
the least difference can be pointed out in any view of the subject. 

It may in the last place be observed that the supposed danger of judiciary 
encroachments on the legislative authority, which has been upon many occasions 
reiterated, is in reality a phantom. Particular misconstructions and contraventions 
of the will of the legislature may now and then happen; but they can never be so 
extensive as to amount to an inconvenience, or in any sensible degree to affect the 
order of the political system. This may be inferred with certainty, from the general 
nature of the judicial power, from the objects to which it relates, from the manner in 
which it is exercised, from its comparative weakness, and from its total incapacity 
to support its usurpations by force. And the inference is greatly fortified by the 
consideration of the important constitutional check which the power of instituting 
impeachments in one part of the legislative body, and of determining upon them in 
the other, would give to that body upon the members of the judicial department. 
This is alone a complete security. There never can be danger that the judges, by a 
series of deliberate usurpations on the authority of the legislature, would hazard 
the united resentment of the body intrusted with it, while this body was possessed 
of the means of punishing their presumption, by degrading them from their 



authorize, in each State or district of the United States, a tribunal competent to the 
determination of matters of national jurisdiction within its limits. 

But why, it is asked, might not the same purpose have been accomplished by the 
instrumentality of the State courts? This admits of different answers. Though the 
fitness and competency of those courts should be allowed in the utmost latitude, 
yet the substance of the power in question may still be regarded as a necessary 
part of the plan, if it were only to empower the national legislature to commit to 
them the cognizance of causes arising out of the national Constitution. To confer 
the power of determining such causes upon the existing courts of the several 
States, would perhaps be as much "to constitute tribunals," as to create new 
courts with the like power. But ought not a more direct and explicit provision to 
have been made in favor of the State courts? There are, in my opinion, substantial 
reasons against such a provision: the most discerning cannot foresee how far the 
prevalency of a local spirit may be found to disqualify the local tribunals for the 
jurisdiction of national causes; whilst every man may discover, that courts 
constituted like those of some of the States would be improper channels of the 
judicial authority of the Union. State judges, holding their offices during pleasure, 
or from year to year, will be too little independent to be relied upon for an inflexible 



vjiiiLcu oiaiccj iiilu iuui ui nvc ui iicui a uui.cn uioliiulo, cu iu lu iiioululc; a icuciai 

court in each district, in lieu of one in every State. The judges of these courts, with 
the aid of the State judges, may hold circuits for the trial of causes in the several 
parts of the respective districts. Justice through them maybe administered with 
ease and despatch; and appeals may be safely circumscribed within a narrow 
compass. This plan appears to me at present the most eligible of any that could 
be adopted; and in order to it, it is necessary that the power of constituting inferior 
courts should exist in the full extent in which it is to be found in the proposed 
Constitution. 

These reasons seem sufficient to satisfy a candid mind, that the want of such a 
power would have been a great defect in the plan. Let us now examine in what 
manner the judicial authority is to be distributed between the supreme and the 
inferior courts of the Union. 

The Supreme Court is to be invested with original jurisdiction, only "in cases 
affecting ambassadors, other public ministers, and consuls, and those in which A 
STATE shall be a party." Public ministers of every class are the immediate 
representatives of their sovereigns. All questions in which they are concerned are 
so directly connected with the public peace, that, as well for the preservation of 



(juuiiu ocuui iuco ui ui ic oicuc lu u ic oiii/lcuo ui cuiuuicri, vvuuiu ci iciuic uiciii lu 

prosecute that State in the federal courts for the amount of those securities; a 
suggestion which the following considerations prove to be without foundation. 

It is inherent in the nature of sovereignty not to be amenable to the suit of an 
individual without its consent. This is the general sense, and the general practice 
of mankind; and the exemption, as one of the attributes of sovereignty, is now 
enjoyed by the government of every State in the Union. Unless, therefore, there is a 
surrender of this immunity in the plan of the convention, it will remain with the 
States, and the danger intimated must be merely ideal. The circumstances which 
are necessary to produce an alienation of State sovereignty were discussed in 
considering the article of taxation, and need not be repeated here. A recurrence to 
the principles there established will satisfy us, that there is no color to pretend that 
the State governments would, by the adoption of that plan, be divested of the 
privilege of paying their own debts in their own way, free from every constraint but 
that which flows from the obligations of good faith. The contracts between a nation 
and individuals are only binding on the conscience of the sovereign, and have no 
pretensions to a compulsive force. They confer no right of action, independent of 
the sovereign will. To what purpose would it be to authorize suits against States for 
the debts they owe? How could recoveries be enforced? It is evident, it could not 



The propriety of this appellate jurisdiction has been scarcely called in question in 
regard to matters of law; but the clamors have been loud against it as applied to 
matters of fact. Some well-intentioned men in this State, deriving their notions from 
the language and forms which obtain in our courts, have been induced to consider 
it as an implied supersedure of the trial by jury, in favor of the civil-law mode of 
trial, which prevails in our courts of admiralty, probate, and chancery. A technical 
sense has been affixed to the term "appellate," which, in our law parlance, is 
commonly used in reference to appeals in the course of the civil law. But if I am not 
misinformed, the same meaning would not be given to it in any part of New 
England. There an appeal from one jury to another, is familiar both in language 
and practice, and is even a matter of course, until there have been two verdicts on 
one side. The word "appellate," therefore, will not be understood in the same 
sense in New England as in New York, which shows the impropriety of a technical 
interpretation derived from the jurisprudence of any particular State. The 
expression, taken in the abstract, denotes nothing more than the power of one 
tribunal to review the proceedings of another, either as to the law or fact, or both. 
The mode of doing it may depend on ancient custom or legislative provision (in a 
new government it must depend on the latter), and may be with or without the aid 
of a jury, as may be judged advisable. If, therefore, the re -examination of a fact 



jui iouiuuui i ui uuui iaui ai iu law, i iui 10 il cvci i puc^iuic iu ^cpcu cue li ici i i. niuuyii 

the common-law courts of this State ascertain disputed facts by a jury, yet they 
unquestionably have jurisdiction of both fact and law; and accordingly when the 
former is agreed in the pleadings, they have no recourse to a jury, but proceed at 
once to judgment. I contend, therefore, on this ground, that the expressions, 
"appellate jurisdiction, both as to law and fact," do not necessarily imply a re- 
examination in the Supreme Court of facts decided by juries in the inferior courts. 

The following train of ideas may well be imagined to have influenced the 
convention, in relation to this particular provision. The appellate jurisdiction of the 
Supreme Court (it may have been argued) will extend to causes determinable in 
different modes, some in the course of the COMMON LAW, others in the course of 
the CIVIL LAW. In the former, the revision of the law only will be, generally 
speaking, the proper province of the Supreme Court; in the latter, the re- 
examination of the fact is agreeable to usage, and in some cases, of which prize 
causes are an example, might be essential to the preservation of the public 
peace. It is therefore necessary that the appellate jurisdiction should, in certain 
cases, extend in the broadest sense to matters of fact. It will not answer to make 
an express exception of cases which shall have been originally tried by a jury, 
because in the courts of some of the States all causes are tried in this mode(4); 



[JIUVIUC, LI ICU II i appear LU u ic oupiciiic OUUI L LI ICI C Ol IUUIU UC I IU I C"CAai I II I laLI Ul I 

of facts where they had been tried in the original causes by juries. This would 
certainly be an authorized exception; but if, for the reason already intimated, it 
should be thought too extensive, it might be qualified with a limitation to such 
causes only as are determinable at common law in that mode of trial. 

The amount of the observations hitherto made on the authority of the judicial 
department is this: that it has been carefully restricted to those causes which are 
manifestly proper for the cognizance of the national judicature; that in the partition 
of this authority a very small portion of original jurisdiction has been preserved to 
the Supreme Court, and the rest consigned to the subordinate tribunals; that the 
Supreme Court will possess an appellate jurisdiction, both as to law and fact, in all 
the cases referred to them, both subject to any exceptions and regulations which 
may be thought advisable; that this appellate jurisdiction does, in no case, abolish 
the trial by jury; and that an ordinary degree of prudence and integrity in the 
national councils will insure us solid advantages from the establishment of the 
proposed judiciary, without exposing us to any of the inconveniences which have 
been predicted from that source. 



pronouncing of the law. 

4. I hold that the States will have concurrent jurisdiction with the subordinate 
federal judicatories, in many cases of federal cognizance, as will be explained in 
my next paper. 



FEDERALIST No. 82. The Judiciary Continued. 

From McLEAN's Edition, New York. Wednesday, May 28, 1788 

HAMILTON 
To the People of the State of New York: 



LU UC OUUI I IILLCU LU ICUCI Cll JUI I C3U I^LIUI I. IO UNO LU UC CAUUOIVC, Ul aiC LI IUOC UUUI LO LU 

possess a concurrent jurisdiction? If the latter, in what relation will they stand to the 
national tribunals? These are inquiries which we meet with in the mouths of men of 
sense, and which are certainly entitled to attention. 

The principles established in a former paper(l) teach us that the States will retain 
all pre-existing authorities which may not be exclusively delegated to the federal 
head; and that this exclusive delegation can only exist in one of three cases: where 
an exclusive authority is, in express terms, granted to the Union; or where a 
particular authority is granted to the Union, and the exercise of a like authority is 
prohibited to the States; or where an authority is granted to the Union, with which a 
similar authority in the States would be utterly incompatible. Though these 
principles may not apply with the same force to the judiciary as to the legislative 
power, yet I am inclined to think that they are, in the main, just with respect to the 
former, as well as the latter. And under this impression, I shall lay it down as a rule, 
that the State courts will retain the jurisdiction they now have, unless it appears to 
be taken away in one of the enumerated modes. 

The only thing in the proposed Constitution, which wears the appearance of 
confining the causes of federal cognizance to the federal courts, is contained in 



by implication, the last appears to me the most natural and the most defensible 
construction. 

But this doctrine of concurrent jurisdiction is only clearly applicable to those 
descriptions of causes of which the State courts have previous cognizance. It is 
not equally evident in relation to cases which may grow out of, and be peculiar to, 
the Constitution to be established; for not to allow the State courts a right of 
jurisdiction in such cases, can hardly be considered as the abridgment of a pre- 
existing authority. I mean not therefore to contend that the United States, in the 
course of legislation upon the objects intrusted to their direction, may not commit 
the decision of causes arising upon a particular regulation to the federal courts 
solely, if such a measure should be deemed expedient; but I hold that the State 
courts will be divested of no part of their primitive jurisdiction, further than may 
relate to an appeal; and I am even of opinion that in every case in which they we re 
not expressly excluded by the future acts of the national legislature, they will of 
course take cognizance of the causes to which those acts may give birth. This I 
infer from the nature of judiciary power, and from the general genius of the system. 
The judiciary power of every government looks beyond its own local or municipal 
laws, and in civil cases lays hold of all subjects of litigation between parties within 



oiaico. 1 1 ic v^ui Duiuuui i 111 uncui lciiiio yivco cu i a|j|jciiaic juiiouiuliui i iu u ic 

Supreme Court in all the enumerated cases of federal cognizance in which it is not 
to have an original one, without a single expression to confine its operation to the 
inferior federal courts. The objects of appeal, not the tribunals from which it is to be 
made, are alone contemplated. From this circumstance, and from the reason of 
the thing, it ought to be construed to extend to the State tribunals. Either this must 
be the case, or the local courts must be excluded from a concurrent jurisdiction in 
matters of national concern, else the judiciary authority of the Union may be eluded 
at the pleasure of every plaintiff or prosecutor. Neither of these consequences 
ought, without evident necessity, to be involved; the latter would be entirely 
inadmissible, as it would defeat some of the most important and avowed 
purposes of the proposed government, and would essentially embarrass its 
measures. Nor do I perceive any foundation for such a supposition. Agreeably to 
the remark already made, the national and State systems are to be regarded as 
ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the 
execution of the laws of the Union, and an appeal from them will as naturally lie to 
that tribunal which is destined to unite and assimilate the principles of national 
justice and the rules of national decisions. The evident aim of the plan of the 
convention is, that all the causes of the specified classes shall, for weighty public 



LI IC I ICAL (JICLUC, LI ICLL LI IC O KJVJ \\~> IAAL. rVJVVI_r\ Ul LI IC \J\ IILCU OiaLC3 01 iclii UC VCOLCU II I 

one Supreme Court, and in such inferior courts as Congress shall ordain and 
establish"; and it then proceeds to enumerate the cases to which this judicial 
power shall extend. It afterwards divides the jurisdiction of the Supreme Court into 
original and appellate, but gives no definition of that of the subordinate courts. The 
only outlines described for them, are that they shall be "inferior to the Supreme 
Court," and that they shall not exceed the specified limits of the federal judiciary. 
Whether their authority shall be original or appellate, or both, is not declared. All 
this seems to be left to the discretion of the legislature. And this being the case, I 
perceive at present no impediment to the establishment of an appeal from the 
State courts to the subordinate national tribunals; and many advantages attending 
the power of doing it may be imagined. It would diminish the motives to the 
multiplication of federal courts, and would admit of arrangements calculated to 
contract the appellate jurisdiction of the Supreme Court. The State tribunals may 
then be left with a more entire charge of federal causes; and appeals, inmost 
cases in which they may be deemed proper, instead of being carried to the 
Supreme Court, may be made to lie from the State courts to district courts of the 
Union. 



Relation to Trial by Jury 

From MCLEAN'S Edition, New York. Wednesday, May 28, 

1788 

HAMILTON 

To the People of the State of New York: 

THE objection to the plan of the convention, which has met with most success in 
this State, and perhaps in several of the other States, is that relative to the want of 
a constitutional provision for the trial by jury in civil cases. The disingenuous form 
in which this objection is usually stated has been repeatedly adverted to and 
exposed, but continues to be pursued in all the conversations and writings of the 
opponents of the plan. The mere silence of the Constitution in regard to civil 
causes, is represented as an abolition of the trial by jury, and the declamations to 
which it has afforded a pretext are artfully calculated to induce a persuasion that 



i iavc aiici i i|jlcu lu ou|J|juil il uy ucriicuii icycii iiiciaiiiio ui ii ilci pi ciauui i, vviiil.ii li icy 

have perverted from their true meaning, it may not be wholly useless to explore the 
ground they have taken. 

The maxims on which they rely are of this nature: "A specification of particulars is 
an exclusion of generals"; or, "The expression of one thing is the exclusion of 
another." Hence, say they, as the Constitution has established the trial by jury in 
criminal cases, and is silent in respect to civil, this silence is an implied prohibition 
of trial by jury in regard to the latter. 

The rules of legal interpretation are rules of common sense, adopted by the courts 
in the construction of the laws. The true test, therefore, of a just application of them 
is its conformity to the source from which they are derived. This being the case, let 
me ask if it is consistent with common-sense to suppose that a provision obliging 
the legislative power to commit the trial of criminal causes to juries, is a privation 
of its right to authorize or permit that mode of trial in other cases? Is it natural to 
suppose, that a command to do one thing is a prohibition to the doing of another, 
which there was a previous power to do, and which is not incompatible with the 
thing commanded to be done? If such a supposition would be unnatural and 
unreasonable, it cannot be rational to maintain that an injunction of the trial by jury 



picric i loc, li ici ciuic, u icll u ic i imiui lai icy ioiciluic vvuuiu iiuluc ai iuii iiuci iy lu ouui mil 

all the civil causes of federal cognizance to the determination of juries, is a 
pretense destitute of all just foundation. 

From these observations this conclusion results: that the trial by jury in civil cases 
would not be abolished; and that the use attempted to be made of the maxims 
which have been quoted, is contrary to reason and common-sense, and therefore 
not admissible. Even if these maxims had a precise technical sense, 
corresponding with the idea of those who employ them upon the present occasion, 
which, however, is not the case, they would still be inapplicable to a constitution of 
government. In relation to such a subject, the natural and obvious sense of its 
provisions, apart from any technical rules, is the true criterion of construction. 

Having now seen that the maxims relied upon will not bear the use made of them, 
let us endeavor to ascertain their proper use and true meaning. This will be best 
done by examples. The plan of the convention declares that the power of 
Congress, or, in other words, of the national legislature, shall extend to certain 
enumerated cases. This specification of particulars evidently excludes all 
pretension to a general legislative authority, because an affirmative grant of 
special powers would be absurd, as well as useless, if a general authority was 



to demonstrate the proper use of these maxims, and the abuse which has been 
made of them. 

Let us suppose that by the laws of this State a married woman was incapable of 
conveying her estate, and that the legislature, considering this as an evil, should 
enact that she might dispose of her property by deed executed in the presence of 
a magistrate. In such a case there can be no doubt but the specification would 
amount to an exclusion of any other mode of conveyance, because the woman 
having no previous power to alienate her property, the specification determines 
the particular mode which she is, for that purpose, to avail herself of. But let us 
further suppose that in a subsequent part of the same act it should be declared 
that no woman should dispose of any estate of a determinate value without the 
consent of three of her nearest relations, signified by their signing the deed; could 
it be inferred from this regulation that a married woman might not procure the 
approbation of her relations to a deed for conveying property of inferior value? The 
position is too absurd to merit a refutation, and yet this is precisely the position 
which those must establish who contend that the trial by juries in civil cases is 
abolished, because it is expressly provided for in cases of a criminal nature. 



depend upon positive violations of the articles of union, by acts of the State 
legislatures, will belong exclusively to the jurisdiction of the State tribunals. Add to 
this, that admiralty causes, and almost all those which are of equity jurisdiction, are 
determinable under our own government without the intervention of a jury, and the 
inference from the whole will be, that this institution, as it exists with us at present, 
cannot possibly be affected to any great extent by the proposed alteration in our 
system of government. 

The friends and adversaries of the plan of the convention, if they agree in nothing 
else, concur at least in the value they set upon the trial by jury; or if there is any 
difference between them it consists in this: the former regard it as a valuable 
safeguard to liberty; the latter represent it as the very palladium of free 
government. For my own part, the more the operation of the institution has fallen 
under my observation, the more reason I have discovered for holding it in high 
estimation; and it would be altogether superfluous to examine to what extent it 
deserves to be esteemed useful or essential in a representative republic, or how 
much more merit it may be entitled to, as a defense against the oppressions of an 
hereditary monarch, than as a barrier to the tyranny of popular magistrates in a 
popular government. Discussions of this kind would be more curious than 



il i iaa uccn uuocivcu, u icu mai uy juiy 10 a ocucyuaiu aycuiioi cu i u|J|jicooivc 

exercise of the power of taxation. This observation deserves to be canvassed. 

It is evident that it can have no influence upon the legislature, in regard to the 
amount of taxes to be laid, to the objects upon which they are to be imposed, or to 
the rule by which they are to be apportioned. If it can have any influence, therefore, 
it must be upon the mode of collection, and the conduct of the officers intrusted 
with the execution of the revenue laws. 

As to the mode of collection in this State, under our own Constitution, the trial by 
jury is in most cases out of use. The taxes are usually levied by the more summary 
proceeding of distress and sale, as in cases of rent. And it is acknowledged on all 
hands, that this is essential to the efficacy of the revenue laws. The dilatory course 
of a trial at law to recover the taxes imposed on individuals, would neither suit the 
exigencies of the public nor promote the convenience of the citizens. It would often 
occasion an accumulation of costs, more burdensome than the original sum of the 
tax to be levied. 

And as to the conduct of the officers of the revenue, the provision in favor of trial by 
jury in criminal cases, will afford the security aimed at. Wilful abuses of a public 



ui uiuiiiciiy juiico, di iu li ic l.icii\o ui uuuilo, vvi iu nave li ic i iui i hi lauui i ui opcuiai 

juries, are themselves standing officers, and, acting individually, maybe supposed 
more accessible to the touch of corruption than the judges, who are a collective 
body. It is not difficult to see, that it would be in the power of those officers to select 
jurors who would serve the purpose of the party as well as a corrupted bench. In 
the next place, it may fairly be supposed, that there would be less difficulty in 
gaining some of the jurors promiscuously taken from the public mass, than in 
gaining men who had been chosen by the government for their probity and good 
character. But making every deduction for these considerations, the trial by jury 
must still be a valuable check upon corruption. It greatly multiplies the impediments 
to its success. As matters now stand, it would be necessary to corrupt both court 
and jury; for where the jury have gone evidently wrong, the court will generally grant 
a new trial, and it would be in most cases of little use to practice upon the jury, 
unless the court could be likewise gained. Here then is a double security; and it will 
readily be perceived that this complicated agency tends to preserve the purity of 
both institutions. By increasing the obstacles to success, it discourages attempts 
to seduce the integrity of either. The temptations to prostitution which the judges 
might have to surmount, must certainly be much fewer, while the co-operation of a 
jury is necessary, than they might be, if they had themselves the exclusive 



view i lcli\c ui li ic 3UUJCL/L, i ucouinc iiiuic uui ivii iucu ui li ic iccliilv Ul LI IC UUOLCLUICO 

which, we are authoritatively informed, prevented the insertion of a provision on 
this head in the plan of the convention. 

The great difference between the limits of the jury trial in different States is not 
generally understood; and as it must have considerable influence on the sentence 
we ought to pass upon the omission complained of in regard to this point, an 
explanation of it is necessary. In this State, our judicial establishments resemble, 
more nearly than in any other, those of Great Britain. We have courts of common 
law, courts of probates (analogous in certain matters to the spiritual courts in 
England), a court of admiralty and a court of chancery. In the courts of common law 
only, the trial by jury prevails, and this with some exceptions. In all the others a 
single judge presides, and proceeds in general either according to the course of 
the canon or civil law, without the aid of a jury.(l) In New Jersey, there is a court of 
chancery which proceeds like ours, but neither courts of admiralty nor of probates, 
in the sense in which these last are established with us. In that State the courts of 
common law have the cognizance of those causes which with us are determinable 
in the courts of admiralty and of probates, and of course the jury trial is more 
extensive in New Jersey than in New York. In Pennsylvania, this is perhaps still 
more the case, for there is no court of chancery in that State, and its common-law 



and, to a certain extent, equity jurisdiction. In cases of importance, their General 
Assembly is the only court of chancery. In Connecticut, therefore, the trial by jury 
extends in practice further than in any other State yet mentioned. Rhode Island is, I 
believe, in this particular, pretty much in the situation of Connecticut. 
Massachusetts and New Hampshire, in regard to the blending of law, equity, and 
admiralty jurisdictions, are in a similar predicament. In the four Eastern States, the 
trial by jury not only stands upon a broader foundation than in the other States, but 
it is attended with a peculiarity unknown, in its full extent, to any of them. There is 
an appeal of course from one jury to another, till there have been two verdicts out 
of three on one side. 

From this sketch it appears that there is a material diversity, as well in the 
modification as in the extent of the institution of trial by jury in civil cases, in the 
several States; and from this fact these obvious reflections flow: first, that no 
general rule could have been fixed upon by the convention which would have 
corresponded with the circumstances of all the States; and secondly, that more or 
at least as much might have been hazarded by taking the system of anyone State 
for a standard, as by omitting a provision altogether and leaving the matter, as has 
been done, to legislative regulation. 



destitute of a precise meaning, and inoperative from its uncertainty. 

As, on the one hand, the form of the provision would not fulfil the intent of its 
proposers, so, on the other, if I apprehend that intent rightly, it would be in itself 
inexpedient. I presume it to be, that causes in the federal courts should be tried by 
jury, if, in the State where the courts sat, that mode of trial would obtain in a similar 
case in the State courts; that is to say, admiralty causes should be tried in 
Connecticut by a jury, in New York without one. The capricious operation of so 
dissimilar a method of trial in the same cases, under the same government, is of 
itself sufficient to indispose every wellregulated judgment towards it. Whether the 
cause should be tried with or without a jury, would depend, in a great number of 
cases, on the accidental situation of the court and parties. 

But this is not, in my estimation, the greatest objection. I feel a deep and 
deliberate conviction that there are many cases in which the trial byjuryisan 
ineligible one. I think it so particularly in cases which concern the public peace with 
foreign nationsA — that is, in most cases where the question turns wholly on the 
laws of nations. Of this nature, among others, are all prize causes. Juries cannot 
be supposed competent to investigations that require a thorough knowledge of the 
laws and usages of nations; and they will sometimes be under the influence of 



ucauccs, li icy die uclci 1 1 in iciuic 111 vjjiccu oiilcuii, 111 u ic iaoi icouii, uciuic li ic r\niy 

himself, in his privy council, where the fact, as well as the law, undergoes a re- 
examination. This alone demonstrates the impolicy of inserting a fundamental 
provision in the Constitution which would make the State systems a standard for 
the national government in the article under consideration, and the danger of 
encumbering the government with any constitutional provisions the propriety of 
which is not indisputable. 

My convictions are equally strong that great advantages result from the separation 
of the equity from the law jurisdiction, and that the causes which belong to the 
former would be improperly committed to juries. The great and primary use of a 
court of equity is to give relief in extraordinary cases, which are exceptions(2) to 
general rules. To unite the jurisdiction of such cases with the ordinary jurisdiction, 
must have a tendency to unsettle the general rules, and to subject every case that 
arises to a special determination; while a separation of the one from the other has 
the contrary effect of rendering one a sentinel over the other, and of keeping each 
within the expedient limits. Besides this, the circumstances that constitute cases 
proper for courts of equity are in many instances so nice and intricate, that they are 
incompatible with the genius of trials by jury. They require often such long, 
deliberate, and critical investigation as would be impracticable to men called from 



Will ICClUliy jJCIIIIIL LI IC CALCIDIUII Ul ILO JUI IDUIl/UUI I LU IIICIUCIO Ul ICIVV, UUL IL 13 I IUI a 

little to be suspected, that the attempt to extend the jurisdiction of the courts of law 
to matters of equity will not only be unproductive of the advantages which may be 
derived from courts of chancery, on the plan upon which they are established in 
this State, but will tend gradually to change the nature of the courts of law, and to 
undermine the trial by jury, by introducing questions too complicated for a decision 
in that mode. 

These appeared to be conclusive reasons against incorporating the systems of all 
the States, in the formation of the national judiciary, according to what maybe 
conjectured to have been the attempt of the Pennsylvania minority. Let us now 
examine how far the proposition of Massachusetts is calculated to remedy the 
supposed defect. 

It is in this form: "In civil actions between citizens of different States, every issue of 
fact, arising in actions at common law, may be tried by a jury if the parties, or 
either of them request it." 

This, at best, is a proposition confined to one description of causes; and the 
inference is fair, either that the Massachusetts convention considered that as the 



ui uauoca vviiil.ii il io iiilciiucu oi 1a.11 uc ciiuucu lu a mai uy juiy. n i uiio oiaic, u ic 

boundaries between actions at common law and actions of equitable jurisdiction, 
are ascertained in conformity to the rules which prevail in England upon that 
subject. In many of the other States the boundaries are less precise. In some of 
them every cause is to be tried in a court of common law, and upon that foundation 
every action may be considered as an action at common law, to be determined by 
a jury, if the parties, or either of them, choose it. Hence the same irregularity and 
confusion would be introduced by a compliance with this proposition, that I have 
already noticed as resulting from the regulation proposed by the Pennsylvania 
minority. In one State a cause would receive its determination from a jury, if the 
parties, or either of them, requested it; but in another State, a cause exactly similar 
to the other, must be decided without the intervention of a jury, because the State 
judicatories varied as to common-law jurisdiction. 

It is obvious, therefore, that the Massachusetts proposition, upon this subject 
cannot operate as a general regulation, until some uniform plan, with respect to the 
limits of common-law and equitable jurisdictions, shall be adopted by the different 
States. To devise a plan of that kind is a task arduous in itself, and which it would 
require much time and reflection to mature. It would be extremely difficult, if not 
impossible, to suggest any general regulation that would be acceptable to all the 



ICpi CC3CI ILCILIUI I II I ICIVUI Ul ILO UVVI I IjUVCI I II I ICI IL, Cll IU IL I I IUOL UCUI IL.CI LCLI I I VVI II Ul I Ul LI IC 

States would have been taken as the model. It has been shown that many of them 
would be improper ones. And I leave it to conjecture, whether, under all 
circumstances, it is most likely that New York, or some other State, would have 
been preferred. But admit that a judicious selection could have been effected in 
the convention, still there would have been great danger of jealousy and disgust in 
the other States, at the partiality which had been shown to the institutions of one. 
The enemies of the plan would have been furnished with a fine pretext for raising a 
host of local prejudices against it, which perhaps might have hazarded, in no 
inconsiderable degree, its final establishment. 

To avoid the embarrassments of a definition of the cases which the trial by jury 
ought to embrace, it is sometimes suggested by men of enthusiastic tempers, that 
a provision might have been inserted for establishing it in all cases whatsoever. 
For this I believe, no precedent is to be found in any member of the Union; and the 
considerations which have been stated in discussing the proposition of the 
minority of Pennsylvania, must satisfy every sober mind that the establishment of 
the trial by jury in all cases would have been an unpardonable error in the plan. 

In short, the more it is considered the more arduous will appear the task of 



uaocro, cu iu u iuoc 111 vviiil.ii u ic yiccu uuuy ui u ic uui i n i iui my 10 n ucicoicu, inai 

mode of trial will remain in its full force, as established in the State constitutions, 
untouched and unaffected by the plan of the convention; that it is in no case 
abolished(3) by that plan; and that there are great if not insurmountable difficulties 
in the way of making any precise and proper provision for it in a Constitution for 
the United States. 

The best judges of the matter will be the least anxious for a constitutional 
establishment of the trial by jury in civil cases, and will be the most ready to admit 
that the changes which are continually happening in the affairs of society may 
render a different mode of determining questions of property preferable in many 
cases in which that mode of trial now prevails. For my part, I acknowledge myself 
to be convinced that even in this State it might be advantageously extended to 
some cases to which it does not at present apply, and might as advantageously 
be abridged in others. It is conceded by all reasonable men that it ought not to 
obtain in all cases. The examples of innovations which contract its ancient limits, 
as well in these States as in Great Britain, afford a strong presumption that its 
former extent has been found inconvenient, and give room to suppose that future 
experience may discover the propriety and utility of other exceptions. I suspect it to 
be impossible in the nature of the thing to fix the salutary point at which the 



IMC LIUUI IO LI ICIL LI IC yCMCICll UI-IMIUO Ul CL LJ U VCI I II I ICI IL io an LI ICIL oai I uc 

substantially relied upon for permanent effects. Particular provisions, though not 
altogether useless, have far less virtue and efficacy than are commonly ascribed to 
them; and the want of them will never be, with men of sound discernment, a 
decisive objection to any plan which exhibits the leading characters of a good 
government. 

It certainly sounds not a little harsh and extraordinary to affirm that there is no 
security for liberty in a Constitution which expressly establishes the trial by jury in 
criminal cases, because it does not do it in civil also; while it is a notorious fact 
that Connecticut, which has been always regarded as the most popular State in 
the Union, can boast of no constitutional provision for either. 

PUBLIUS 

1. It has been erroneously insinuated with regard to the court of chancery, that this 
court generally tries disputed facts by a jury. The truth is, that references to a jury in 
that court rarely happen, and are in no case necessary but where the validity of a 
devise of land comes into question. 



FEDERALIST No. 84. Certain General and 

Miscellaneous Objections to the Constitution 

Considered and Answered. 

From McLEAN's Edition, New York. Wednesday, May 28, 1788 

HAMILTON 

To the People of the State of New York: 

IN THE course of the foregoing review of the Constitution, I have taken notice of, 
and endeavored to answer most of the objections which have appeared against it. 
There, however, remain a few which either did not fall naturally under any particular 
head or were forgotten in their proper places. These shall now be discussed; but 
as the subject has been drawn into great length, I shall so far consult brevity as to 
comprise all my observations on these miscellaneous points in a single paper. 



rights, not expressed in it, are equally secured. 

To the first I answer, that the Constitution proposed by the convention contains, as 
well as the constitution of this State, a number of such provisions. 

Independent of those which relate to the structure of the government, we find the 
following: Article 1, section 3, clause 7 A — "Judgment in cases of impeachment 
shall not extend further than to removal from office, and disqualification to hold and 
enjoy any office of honor, trust, or profit under the United States; but the party 
convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, 
and punishment according to law." Section 9, of the same article, clause 2A 
— "The privilege of the writ of habeas corpus shall not be suspended, unless when 
in cases of rebellion or invasion the public safety may require it." Clause 3A — "No 
bill of attainder or ex-post-facto law shall be passed." Clause 7 A — "No title of 
nobility shall be granted by the United States; and no person holding any office of 
profit or trust under them, shall, without the consent of the Congress, accept of any 
present, emolument, office, or title of any kind whatever, from any king, prince, or 
foreign state." Article 3, section 2, clause 3A — "The trial of all crimes, except in 
cases of impeachment, shall be by jury; and such trial shall be held in the State 
where the said crimes shall have been committed; but when not committed within 



croiauiioi n i ici il ui u ic vviil ui i ia.uca.0 uuipuo, u ic jjiui iiuiuui i ui ca |juol iciuiu lavvo, 

and of TITLES OF NOBILITY, to which we have no corresponding provision in our 
Constitution, are perhaps greater securities to liberty and republicanism than any it 
contains. The creation of crimes after the commission of the fact, or, in other 
words, the subjecting of men to punishment for things which, when they were done, 
were breaches of no law, and the practice of arbitrary imprisonments, have been, 
in all ages, the favorite and most formidable instruments of tyranny. The 
observations of the judicious Blackstone,(l) in reference to the latter, are well 
worthy of recital: "To bereave a man of life, (says he) or by violence to confiscate 
his estate, without accusation or trial, would be so gross and notorious an act of 
despotism, as must at once convey the alarm of tyranny throughout the whole 
nation; but confinement of the person, by secretly hurrying him to jail, where his 
sufferings are unknown or forgotten, is a less public, a less striking, and therefore 
a more dangerous engine of arbitrary government." And as a remedy for this fatal 
evil he is everywhere peculiarly emphatical in his encomiums on the habeas 
corpus act, which in one place he calls "the BULWARK of the British 
Constitution."(2) 

Nothing need be said to illustrate the importance of the prohibition of titles of 
nobility. This may truly be denominated the corner-stone of republican government; 



uc ii ilci iucu ao mi i iiiauui 10 ui u ic puvvci ui u ic yuvci i n i ici il uocii. 

It has been several times truly remarked that bills of rights are, in their origin, 
stipulations between kings and their subjects, abridgements of prerogative in favor 
of privilege, reservations of rights not surrendered to the prince. Such was 
MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such 
were the subsequent confirmations of that charter by succeeding princes. Such 
was the Petition of Right assented to by Charles I., in the beginning of his reign. 
Such, also, was the Declaration of Right presented by the Lords and Commons to 
the Prince of Orange in 1688, and afterwards thrown into the form of an act of 
parliament called the Bill of Rights. It is evident, therefore, that, according to their 
primitive signification, they have no application to constitutions professedly 
founded upon the power of the people, and executed by their immediate 
representatives and servants. Here, in strictness, the people surrender nothing; 
and as they retain every thing they have no need of particular reservations. "WE, 
THE PEOPLE of the United States, to secure the blessings of liberty to ourselves 
and our posterity, do ordain and establish this Constitution for the United States of 
America." Here is a better recognition of popular rights, than volumes of those 
aphorisms which make the principal figure in several of our State bills of rights, 
and which would sound much better in a treatise of ethics than in a constitution of 



they are contended for, are not only unnecessary in the proposed Constitution, but 
would even be dangerous. They would contain various exceptions to powers not 
granted; and, on this very account, would afford a colorable pretext to claim more 
than were granted. For why declare that things shall not be done which there is no 
power to do? Why, for instance, should it be said that the liberty of the press shall 
not be restrained, when no power is given by which restrictions may be imposed? I 
will not contend that such a provision would confer a regulating power; but it is 
evident that it would furnish, to men disposed to usurp, a plausible pretense for 
claiming that power. They might urge with a semblance of reason, that the 
Constitution ought not to be charged with the absurdity of providing against the 
abuse of an authority which was not given, and that the provision against 
restraining the liberty of the press afforded a clear implication, that a power to 
prescribe proper regulations concerning it was intended to be vested in the 
national government. This may serve as a specimen of the numerous handles 
which would be given to the doctrine of constructive powers, by the indulgence of 
an injudicious zeal for bills of rights. 

On the subject of the liberty of the press, as much as has been said, I cannot 
forbear adding a remark or two: in the first place, I observe, that there is not a 



I I ICIC I CI I ICUI IO UUL UIIC UU ICI VICVV Ul LI IIO II ICILLCI LU L.UI IL.IUUC LI IC (JUII IL. I I IC LI ULI I IO, 

after all the declamations we have heard, that the Constitution is itself, in every 
rational sense, and to every useful purpose, A BILL OF RIGHTS. The several bills 
of rights in Great Britain form its Constitution, and conversely the constitution of 
each State is its bill of rights. And the proposed Constitution, if adopted, will be the 
bill of rights of the Union. Is it one object of a bill of rights to declare and specify the 
political privileges of the citizens in the structure and administration of the 
government? This is done in the most ample and precise manner in the plan of the 
convention; comprehending various precautions for the public security, which are 
not to be found in any of the State constitutions. Is another object of a bill of rights 
to define certain immunities and modes of proceeding, which are relative to 
personal and private concerns? This we have seen has also been attended to, in a 
variety of cases, in the same plan. Adverting therefore to the substantial meaning 
of a bill of rights, it is absurd to allege that it is not to be found in the work of the 
convention. It may be said that it does not go far enough, though it will not be easy 
to make this appear; but it can with no propriety be contended that there is no such 
thing. It certainly must be immaterial what mode is observed as to the order of 
declaring the rights of the citizens, if they are to be found in any part of the 
instrument which establishes the government. And hence it must be apparent, that 



ucu ii iul uc ocuciy n uiuoicu lu a uuuy vvi iiui i 10 iiul uiiuci cvciy icujuicsilc uui iliui. dui 

there are satisfactory reasons to show that the objection is in reality not well 
founded. There is in most of the arguments which relate to distance a palpable 
illusion of the imagination. What are the sources of information by which the 
people in Montgomery County must regulate their judgment of the conduct of their 
representatives in the State legislature? Of personal observation they can have no 
benefit. This is confined to the citizens on the spot. They must therefore depend on 
the information of intelligent men, in whom they confide; and how must these men 
obtain their information? Evidently from the complexion of public measures, from 
the public prints, from correspondences with their representatives, and with other 
persons who reside at the place of their deliberations. This does not apply to 
Montgomery County only, but to all the counties at any considerable distance from 
the seat of government. 

It is equally evident that the same sources of information would be open to the 
people in relation to the conduct of their representatives in the general 
government, and the impediments to a prompt communication which distance may 
be supposed to create, will be overbalanced by the effects of the vigilance of the 
State governments. The executive and legislative bodies of each State will be so 
many sentinels over the persons employed in every department of the national 



i icai u ic acai ui yuvci i n i ici il win, n i an ljuc^uui io u icii cmcui u ic yci ici cu iiuci iy cu iu 

prosperity, have the same interest with those who are at a distance, and that they 
will stand ready to sound the alarm when necessary, and to point out the actors in 
any pernicious project. The public papers will be expeditious messengers of 
intelligence to the most remote inhabitants of the Union. 

Among the many curious objections which have appeared against the proposed 
Constitution, the most extraordinary and the least colorable is derived from the 
want of some provision respecting the debts due to the United States. This has 
been represented as a tacit relinquishment of those debts, and as a wicked 
contrivance to screen public defaulters. The newspapers have teemed with the 
most inflammatory railings on this head; yet there is nothing clearer than that the 
suggestion is entirely void of foundation, the offspring of extreme ignorance or 
extreme dishonesty. In addition to the remarks I have made upon the subject in 
another place, I shall only observe that as it is a plain dictate of common-sense, so 
it is also an established doctrine of political law, that "States neither lose any of 
their rights, nor are discharged from any of their obligations, by a change in the 
form of their civil government."(4) 

The last objection of any consequence, which I at present recollect, turns upon the 



ii i i|juooiuic, vviui any ucyicc ui ocuciy, lu iianuvv u ic luuiiuauun upui i vvi i ■ ^ 1 1 u ic 

system is to stand. The two branches of the legislature are, in the first instance, to 
consist of only sixty-five persons, which is the same number of which Congress, 
under the existing Confederation, maybe composed. It is true that this number is 
intended to be increased; but this is to keep pace with the progress of the 
population and resources of the country. It is evident that a less number would, 
even in the first instance, have been unsafe, and that a continuance of the present 
number would, in a more advanced stage of population, be a very inadequate 
representation of the people. 

Whence is the dreaded augmentation of expense to spring? One source 
indicated, is the multiplication of offices under the new government. Let us 
examine this a little. 

It is evident that the principal departments of the administration under the present 
government, are the same which will be required under the new. There are now a 
Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, 
a Board of Treasury, consisting of three persons, a Treasurer, assistants, clerks, 
etc. These officers are indispensable under any system, and will suffice under the 
new as well as the old. As to ambassadors and other ministers and agents in 



be greater than those of the former. 

Where then are we to seek for those additional articles of expense which are to 
swell the account to the enormous size that has been represented to us? The chief 
item which occurs to me respects the support of the judges of the United States. I 
do not add the President, because there is now a president of Congress, whose 
expenses may not be far, if any thing, short of those which will be incurred on 
account of the President of the United States. The support of the judges will clearly 
be an extra expense, but to what extent will depend on the particular plan which 
may be adopted in regard to this matter. But upon no reasonable plan can it 
amount to a sum which will be an object of material consequence. 

Let us now see what there is to counterbalance any extra expense that may attend 
the establishment of the proposed government. The first thing which presents itself 
is that a great part of the business which now keeps Congress sitting through the 
year will be transacted by the President. Even the management of foreign 
negotiations will naturally devolve upon him, according to general principles 
concerted with the Senate, and subject to their final concurrence. Hence it is 
evident that a portion of the year will suffice for the session of both the Senate and 
the House of Representatives; we may suppose about a fourth for the latter and a 



ucci i piuLiauLcu yicauy ucyui iu vvi icii vvao ncucooaiy iui u ic cacuuuuiiui u ic iiicic 

local business of the States. More than half their time has been frequently 
employed in matters which related to the United States. Now the members who 
compose the legislatures of the several States amount to two thousand and 
upwards, which number has hitherto performed what under the new system will be 
done in the first instance by sixty-five persons, and probably at no future period by 
above a fourth or fifth of that number. The Congress under the proposed 
government will do all the business of the United States themselves, without the 
intervention of the State legislatures, who thenceforth will have only to attend to the 
affairs of their particular States, and will not have to sit in any proportion as long as 
they have heretofore done. This difference in the time of the sessions of the State 
legislatures will be clear gain, and will alone form an article of saving, which may 
be regarded as an equivalent for any additional objects of expense that maybe 
occasioned by the adoption of the new system. 

The result from these observations is that the sources of additional expense from 
the establishment of the proposed Constitution are much fewer than may have 
been imagined; that they are counterbalanced by considerable objects of saving; 
and that while it is questionable on which side the scale will preponderate, it is 
certain that a government less expensive would be incompetent to the purposes of 



r\i iuvv i i\_/l vjy vvi iai i\_/yi\_» il uuuiu uc i i icu i ilcu i icu , u icil u ic ucoiaiauui 10 111 u ic ^jlcilc 

constitutions, in favor of the freedom of the press, would be a constitutional 
impediment to the imposition of duties upon publications by the State legislatures. 
It cannot certainly be pretended that any degree of duties, however low, would be 
an abridgment of the liberty of the press. We know that newspapers are taxed in 
Great Britain, and yet it is notorious that the press nowhere enjoys greater liberty 
than in that country. And if duties of any kind may be laid without a violation of that 
liberty, it is evident that the extent must depend on legislative discretion, 
respecting the liberty of the press, will give it no greater security than it will have 
without them. The same invasions of it may be effected under the State 
constitutions which contain those declarations through the means of taxation, as 
under the proposed Constitution, which has nothing of the kind. It would be quite 
as significant to declare that government ought to be free, that taxes ought not to 
be excessive, etc., as that the liberty of the press ought not to be restrained. 

4. Vide Rutherford's Institutes, Vol. 2, Book II, Chapter X, Sections XIV and XV. 
Vide also Grotius, Book II, Chapter IX, Sections VIII and IX. 



To the People of the State of New York: 

ACCORDING to the formal division of the subject of these papers, announced in 
my first number, there would appear still to remain for discussion two points: "the 
analogy of the proposed government to your own State constitution," and "the 
additional security which its adoption will afford to republican government, to 
liberty, and to property." But these heads have been so fully anticipated and 
exhausted in the progress of the work, that it would now scarcely be possible to do 
any thing more than repeat, in a more dilated form, what has been heretofore said, 
which the advanced stage of the question, and the time already spent upon it, 
conspire to forbid. 

It is remarkable, that the resemblance of the plan of the convention to the act which 
organizes the government of this State holds, not less with regard to many of the 
supposed defects, than to the real excellences of the former. Among the 
pretended defects are the re-eligibility of the Executive, the want of a council, the 
omission of a formal bill of rights, the omission of a provision respecting the liberty 
of the press. These and several others which have been noted in the course of our 
inquiries are as much chargeable on the existing constitution of this State, as on 
the one proposed for the Union; and a man must have slender pretensions to 



1 1 lay auL|unc uicuu ai iu n muci iuc ciiuuyii, iiuiii icaucio cu iu lavuiuco, lu ucuuiiic 

the despots of the people; in the diminution of the opportunities to foreign intrigue, 
which the dissolution of the Confederacy would invite and facilitate; in the 
prevention of extensive military establishments, which could not fail to grow out of 
wars between the States in a disunited situation; in the express guaranty of a 
republican form of government to each; in the absolute and universal exclusion of 
titles of nobility; and in the precautions against the repetition of those practices on 
the part of the State governments which have undermined the foundations of 
property and credit, have planted mutual distrust in the breasts of all classes of 
citizens, and have occasioned an almost universal prostration of morals. 

Thus have I, fellow-citizens, executed the task I had assigned to myself; with what 
success, your conduct must determine. I trust at least you will admit that I have not 
failed in the assurance I gave you respecting the spirit with which my endeavors 
should be conducted. I have addressed myself purely to your judgments, and have 
studiously avoided those asperities which are too apt to disgrace political 
disputants of all parties, and which have been not a little provoked by the language 
and conduct of the opponents of the Constitution. The charge of a conspiracy 
against the liberties of the people, which has been indiscriminately brought 
against the advocates of the plan, has something in it too wanton and too 



i_cl uo i iuvv |jauoc ai iu aoi\ uuiocivco vviicuici, 111 u ic uuuioc ui u icic |jci|jcio, u ic 

proposed Constitution has not been satisfactorily vindicated from the aspersions 
thrown upon it; and whether it has not been shown to be worthy of the public 
approbation, and necessary to the public safety and prosperity. Every man is 
bound to answer these questions to himself, according to the best of his 
conscience and understanding, and to act agreeably to the genuine and sober 
dictates of his judgment. This is a duty from which nothing can give him a 
dispensation. T is one that he is called upon, nay, constrained by all the 
obligations that form the bands of society, to discharge sincerely and honestly. No 
partial motive, no particular interest, no pride of opinion, no temporary passion or 
prejudice, will justify to himself, to his country, or to his posterity, an improper 
election of the part he is to act. Let him beware of an obstinate adherence to party; 
let him reflect that the object upon which he is to decide is not a particular interest 
of the community, but the very existence of the nation; and let him remember that a 
majority of America has already given its sanction to the plan which he is to 
approve or reject. 

I shall not dissemble that I feel an entire confidence in the arguments which 
recommend the proposed system to your adoption, and that I am unable to discern 
any real force in those by which it has been opposed. I am persuaded that it is the 



ao lai ao i i lave uiiucioluuu u ic iiiccuniiy ui u iuoc vvi iu iiiar\c u ic uui iucooiui 10, 10 

an entire perversion of their sense. No advocate of the measure can be found, 
who will not declare as his sentiment, that the system, though it may not be perfect 
in every part, is, upon the whole, a good one; is the best that the present views and 
circumstances of the country will permit; and is such an one as promises every 
species of security which a reasonable people can desire. 

I answer in the next place, that I should esteem it the extreme of imprudence to 
prolong the precarious state of our national affairs, and to expose the Union to the 
jeopardy of successive experiments, in the chimerical pursuit of a perfect plan. I 
never expect to see a perfect work from imperfect man. The result of the 
deliberations of all collective bodies must necessarily be a compound, as well of 
the errors and prejudices, as of the good sense and wisdom, of the individuals of 
whom they are composed. The compacts which are to embrace thirteen distinct 
States in a common bond of amity and union, must as necessarily be a 
compromise of as many dissimilar interests and inclinations. How can perfection 
spring from such materials? 

The reasons assigned in an excellent little pamphlet lately published in this city,(l) 
are unanswerable to show the utter improbability of assembling a new convention, 



duupuuii, a. i icvv uiic, a.\ iu iiiuol unuciyu a i icvv ucuioiuii ui caunoiaic. iuilo 

complete establishment throughout the Union, it will therefore require the 
concurrence of thirteen States. If, on the contrary, the Constitution proposed should 
once be ratified by all the States as it stands, alterations in it may at any time be 
effected by nine States. Here, then, the chances are as thirteen to nine(2) in favor 
of subsequent amendment, rather than of the original adoption of an entire system. 

This is not all. Every Constitution for the United States must inevitably consist of a 
great variety of particulars, in which thirteen independent States are to be 
accommodated in their interests or opinions of interest. We may of course expect 
to see, in any body of men charged with its original formation, very different 
combinations of the parts upon different points. Many of those who form a majority 
on one question, may become the minority on a second, and an association 
dissimilar to either may constitute the majority on a third. Hence the necessity of 
moulding and arranging all the particulars which are to compose the whole, in such 
a manner as to satisfy all the parties to the compact; and hence, also, an immense 
multiplication of difficulties and casualties in obtaining the collective assent to a 
final act. The degree of that multiplication must evidently be in a ratio to the 
number of particulars and the number of parties. 



uc uioii iuiii icu lu yiciu up any puiuuii ui li ic auuiuniy ui vvi ■ ■ ^ 1 1 u icy vvcic ui i^c 

possessed. For my own part I acknowledge a thorough conviction that any 
amendments which may, upon mature consideration, be thought useful, will be 
applicable to the organization of the government, not to the mass of its powers; 
and on this account alone, I think there is no weight in the observation just stated. I 
also think there is little weight in it on another account. The intrinsic difficulty of 
governing THIRTEEN STATES at any rate, independent of calculations upon an 
ordinary degree of public spirit and integrity, will, in my opinion constantly impose 
on the national rulers the necessity of a spirit of accommodation to the reasonable 
expectations of their constituents. But there is yet a further consideration, which 
proves beyond the possibility of a doubt, that the observation is futile. It is this that 
the national rulers, whenever nine States concur, will have no option upon the 
subject. By the fifth article of the plan, the Congress will be obliged "on the 
application of the legislatures of two thirds of the States (which at present amount 
to nine), to call a convention for proposing amendments, which shall be valid, to all 
intents and purposes, as part of the Constitution, when ratified by the legislatures 
of three fourths of the States, or by conventions in three fourths thereof." The words 
of this article are peremptory. The Congress "shall call a convention." Nothing in 
this particular is left to the discretion of that body. And of consequence, all the 



111 li ic cyanic nyiiL vviui iiic, nuvvcvci icaiuui u icy 1 1 lay uc iui cii i ici iui i ici ilo, iiiuol 

agree in the propriety of a previous adoption, as the most direct road to their own 
object. 

The zeal for attempts to amend, prior to the establishment of the Constitution, must 
abate in every man who is ready to accede to the truth of the following 
observations of a writer equally solid and ingenious: "To balance a large state or 
society (says he), whether monarchical or republican, on general laws, is a work of 
so great difficulty, that no human genius, however comprehensive, is able, by the 
mere dint of reason and reflection, to effect it. The judgments of many must unite in 
the work; EXPERIENCE must guide their labor; TIME must bring it to perfection, 
and the FEELING of inconveniences must correct the mistakes which they 
inevitably fall into in their first trials and experiments. "(3) These judicious 
reflections contain a lesson of moderation to all the sincere lovers of the Union, 
and ought to put them upon their guard against hazarding anarchy, civil war, a 
perpetual alienation of the States from each other, and perhaps the military 
despotism of a victorious demagogue, in the pursuit of what they are not likely to 
obtain, but from TIME and EXPERIENCE. It may be in me a defect of political 
fortitude, but I acknowledge that I cannot entertain an equal tranquillity with those 
who affect to treat the dangers of a longer continuance in our present situation as 



1. Entitled "An Address to the People of the State of New York." 

2. It may rather be said TEN, for though two thirds may set on foot the measure, 
three fourths must ratify. 

3. Hume's Essays, Vol. I, p. 128: "The Rise of Arts and Sciences." 



End of the Project Gutenberg EBook of The Federalist Papers, by 
Alexander Hamilton, John Jay, and James Madison 



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